IN RE ARCHER, W.C. No. 4-457-078 (04/20/01)


IN THE MATTER OF THE CLAIM OF RONALD ARCHER, Claimant, v. WALMART STORES, INC., Employer, and AMERICA HOME ASSURANCE, Insurer, Respondents.

W.C. No. 4-457-078Industrial Claim Appeals Office.
April 20, 2001

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which awarded future medical benefits as provided i Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We affirm.

The claimant suffered admitted injuries to his right shoulder and hand. The claimant underwent a rotator cuff repair in September 1999. After a course of physical therapy, the claimant was unable to regain good range of motion and Dr. Dvirnak opined that further surgery would probably not reduce the range of motion deficits.

In a report dated February 24, 2000, Dr. Lopez reported the claimant’s condition was stable, and was “unlikely to improve with further surgery or physical therapy” or deteriorate. Dr. Lopez placed the claimant at maximum medical improvement with 19 percent upper extremity impairment.

On conflicting medical evidence, the ALJ found the claimant established his entitlement to future medical benefits. Therefore, the ALJ entered a general award of Grover-type medical benefits.

I.
On review the respondents contend there is no evidence which supports the award of future medical benefits. The respondents also allege the ALJ’s findings are insufficient to permit appellate review, and the ALJ failed to resolve pertinent conflicts in the evidence. We reject these arguments.

The respondents are obligated to provide treatment which is “reasonably needed” to cure and relieve the claimant from the effects of the injury. Section 8-42-101(1)(a), C.R.S. 2000. The claimant is entitled to Grover-type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of an industrial injury or prevent further deterioration of the claimant’s condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609
(Colo.App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). However, the claimant need not prove he requires a specific course of treatment at the time of the hearing on future medical benefits to receive a general award of future medical benefits. This is true because the respondents retain the right to contest liability for any specific treatment modality on grounds the proposed treatment is not reasonable or necessary. See Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Accordingly, the absence of evidence that a “prescription” for specific medical treatment at the time of the hearing does not preclude an award of Grover-type medical benefits.

Whether the claimant sustained his burden to prove entitlement t Grover-type medical benefits is a question of fact for resolution by the ALJ. Stollmeyer v. Industrial Claim Appeals Office, supra. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). Furthermore, it is the ALJ’s sole prerogative to assess the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Insofar as the medical evidence is subject to conflicting inferences, we may not substitute our judgment for that of the ALJ concerning the inference to be drawn. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).

On review we must view the evidence in the light most favorable to the prevailing party, and determine whether it is sufficient to support the ALJ’s pertinent findings. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). However, the ALJ is not held to a crystalline standard in articulating her findings of fact. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Rather, the ALJ’s order is sufficient if the basis for the award is apparent from the order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). We also note that the ALJ is only required to make specific findings on evidence she found persuasive and determinative. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.

The ALJ expressly relied on the opinions of Dr. Lopez, Dr. Dvirnak and Dr. Pino in finding the claimant sustained his burden to prove that future medical treatment will be reasonably necessary to relieve the effects of the industrial injury. (Finding of Fact 8). Insofar as the medical evidence is subject to conflicting inferences, it is obvious the ALJ resolved the conflicts in favor of the claimant. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.(Panel may consider findings which are necessarily implied by the ALJ’s order). Therefore, the ALJ’s order is sufficient to permit appellate review and we decline to remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2000.

On February 24, 2000, Dr. Lopez opined that it was unlikely the claimant would require further treatment. However, Dr. Lopez admitted the claimant could develop post- traumatic arthritis or other problems requiring “further medical care, physical therapy or even surgical treatment in the future.” On July 13, 2000, Dr. Lopez clarified his February report by stating the claimant “may require additional surgery in the future.” In so doing, Dr. Lopez noted that both Dr. Dvirnak and Dr. Pino were of the opinion the claimant “may require further intervention” which may be arthroscopic surgery or shoulder replacement surgery.

On June 28, 2000, Dr. Pino reported that further surgery was unlikely to improve the claimant’s “shoulder strength.” However, Dr. Pino stated that the claimant “may require further surgical intervention” for pain management. In fact, Dr. Pino opined that further surgical intervention was a “significant possibility.” Similarly, on June 12, 2000, Dr. Dvirnak opined that it was “certainly possible” the claimant may need future medical treatment such as an MRI or revision surgery of the rotator cuff. Consequently, there is substantial medical evidence from which the ALJ could, and did, reasonably infer that it is more probable than not that future medical treatment will be reasonably necessary to relieve the effects of the industrial injury. Moreover, the ALJ’s findings support the award of future medical benefits. Grover v. Industrial Commission, supra.

II.
For his part, the claimant requests that the effective date of the award be backdated to February 2000, when he reached MMI. However, the claimant did not petition to review the ALJ’s order. Therefore, we do not consider the claimant’s request. See Davila v. Merit System Council, 15 P.3d 781 (Colo.App. 2000) (any part of the ALJ’s order that is adverse must be appealed to preserve the issue on review).

In any event, there is no claim for medical expenses incurred between February 2000 and October 18, 2000, the date of the ALJ’s order. Consequently, we fail to perceive how a backdated award would affect the respondents’ liability for future medical benefits.

IT IS THEREFORE ORDERED that the ALJ’s order dated October 18, 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 April 20, 2001 to the following parties:

Ronald Archer, 2980 C. R. 311, Ignacio, CO 81137

Wal Mart Stores, Inc., 1155 Camino Del Rio, Durango, CO 81301-5105

American Home Assurance Co., Karen Goad, Claims Adjuster, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288

James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)

BY: A. Hurtado