IN RE ANDERSON, W.C. No. 4-176-931 (11/08/00)


IN THE MATTER OF THE CLAIM OF MAJOR B. ANDERSON, Claimant, v. SCHUBERT RANCHES, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-176-931Industrial Claim Appeals Office.
November 8, 2000

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied his request for “diagnostic” treatment by a hand specialist. We affirm.

The claimant sustained extensive injuries on June 23, 1993, when he was thrown from a forklift tractor. His injuries included a cervical fracture and a head injury. The claimant also experienced symptoms in the right upper extremity. After a along course of treatment, one of the claimant’s treating physicians, Dr. Brown, performed cervical surgery on December 8, 1997, and again on March 1999. Apparently, Dr. Brown placed the claimant at maximum medical improvement (MMI) in May 1999, but revoked that opinion on January 3, 2000. Dr. Brown noted clinical symptoms consistent with carpal tunnel syndrome (CTS), and positive EMG studies consistent with CTS. In March 2000 Dr. Brown indicated that he intended to refer the claimant to a hand specialist to give an opinion concerning the claimant’s upper extremity problems. However, Dr. Brown also admitted that he was “not completely satisfied that all the claimant’s symptoms” are related to CTS, and that he was “not sure exactly what kind of problem” the claimant was having. Another treating physician, Dr. Finn, implicitly placed the claimant at MMI by rating the claimant’s permanent impairment on November 3, 1999. Dr. Finn gave no rating for CTS, nor did he recommend treatment of this condition.

At the hearing, the respondents presented the report and testimony of Dr. Talbott. Dr. Talbott opined the claimant probably does not have CTS, but is suffering from degenerative joint disease of the hands. Moreover, Dr. Talbott opined that if the claimant has CTS it is probably not attributable to the industrial injury because traumatic CTS does not occur except in cases of the fracture of the distal radius. (Finding of Fact 19).

The ALJ denied the claimant’s request for an examination by a hand specialist. The ALJ found the treating physicians expressed conflicting opinions concerning whether or not the claimant needed additional treatment to reach MMI. Expressly crediting the opinions of Dr. Talbott, the ALJ found the claimant failed to prove that he has CTS, or if he does, that the condition is causally related to the industrial injury. Thus, the ALJ determined that referral to a hand specialist is not reasonably necessary to treat the industrial injury.

On review, the claimant contends the ALJ erred in denying the referral to a hand specialist for purposes of “diagnosing” the claimant’s condition and determining the cause of the hand pain. The claimant argues that if a diagnostic procedure is necessary to determine whether a condition is work-related, such diagnostic treatment must be provided. The claimant asserts that he has suffered upper extremity problems since the date of the industrial injury, and the ALJ was bound to grant the diagnostic examination recommended by Dr. Brown. We disagree.

The respondents are required to provide such medical treatment “as may reasonably be needed at the time of the injury” and thereafter “during the disability to cure or relieve the employee from the effects of the injury.” Section 8-42-101(1) (a), C.R.S. 2000. As the claimant argues, this statute certainly contemplates the respondents must provide reasonable and necessary diagnostic procedures. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). However, the statute does not require the respondents to provide diagnostic services if they are not necessitated by the industrial injury. The determination of whether proposed treatment is reasonable and necessary is one of fact for the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).

Similarly, the question of whether the claimant has reached MMI depends on a determination of whether the underlying condition causing the disability has become stable, and whether any further treatment will improve that condition. Section 8-40-201(11.5), C.R.S. 2000; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1380, June 8, 2000). Thus, the determination of MMI requires the treating physicians to determine whether or not various conditions are related to the industrial injury or not, and the treating physicians may disagree on such questions. See Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996). As the ALJ correctly concluded, if attending physicians disagree concerning causation and the need for additional treatment, determination of MMI is a factual question for the ALJ. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Further, the ALJ correctly recognized that the burden of proof is on the claimant to establish his entitlement to benefits. Section 8-43-201, C.R.S. 2000.

We must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Where, as here, the claimant does not designate a transcript of the hearing, we must assume the ALJ’s findings of fact concerning the testimony are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1998).

Here, the ALJ determined there was a disagreement between Dr. Brown and Dr. Finn concerning whether or not the claimant is at MMI for the effects of the industrial injury, or whether the claimant needs a referral to a hand specialist to “diagnose” the causes of the alleged CTS. However, the ALJ credited the reports and testimony of Dr. Talbott that the claimant probably does not have CTS, but if he does, the CTS is unrelated to the industrial injury. This evidence supports the ALJ’s legal conclusions that the claimant is at MMI, and it is not reasonably necessary to refer him to a hand specialist for the purpose of curing or relieving the effects of the industrial injury.

The claimant’s argument notwithstanding, the workers’ compensation system is not unworkable if the respondents dispute their liability for specific procedures or treatment recommended by a treating physician. The claimant’s remedy in such situations is to request a hearing and demonstrate that the disputed procedure is reasonable and necessary. Indeed, such disputes are common. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).

IT IS THEREFORE ORDERED that the ALJ’s order dated June 14, 2000, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed November 8, 2000 to the following parties:

Major B. Anderson, 1099 Wakita Dr., Colorado Springs, CO 80915

Schubert Ranches, Inc., 1555 S. Baggett Rd., Calhan, CO 80808-7808

Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)

William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)

Kathryn Kaeble Todd, Esq., 999 18th St., #3100, Denver, CO 80202

BY: A. Pendroy