IN RE ARCHULETA v. EASTMAN KODAK, W.C. No. 4-419-565 (11/29/2006)


IN THE MATTER OF THE CLAIM OF Judy ARCHULETA, Claimant v. EASTMAN KODAK, Employer and Self-Insured, Insurer, Respondents.

W.C. No. 4-419-565.Industrial Claim Appeals Office.
November 29, 2006.

FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ Cannici) dated May 2, 2006 that denied requests for medical and temporary total disability benefits. We affirm.

This matter was previously before us. On October 22, 2002 ALJ Harr entered an order determining that the claimant’s occupational exposure at Kodak aggravated her degenerative arthritis in her knees and caused a substantial permanent aggravation of the underlying degenerative arthritis of her knees. ALJ Harr found that the claimant’s work at Kodak contributed five percent to the claimant’s development of her underlying degenerative arthritis in her knees. ALJ Harr found the employer was liable for paying five percent of the claimant’s medical benefits that were reasonably necessary to cure and relieve the effects of her industrial injury. The claimant terminated her employment with the employer on September 3, 1999. ALJ Harr found that the claimant left the employer for reasons unrelated to her bilateral knee condition and failed to prove that there was a causal connection between her wage loss subsequent to terminating her employment and her industrial injury. We affirmed the order of ALJ Harr and the matter is currently under consideration by the Court of Appeals.

ALJ Cannici’s findings pertinent to the present appeal are as follows. On March 6, 2003 Dr. Volk recommended claimant have an orthopedic consultation to consider total joint replacement. Dr. Volk noted that, until the time of the consultation, the claimant’s severe symptoms made her incapable of full or part-time work. The claimant sought an award of temporary total disability (TTD) benefits from the date of Dr. Volk’s note until terminated by statute. Dr. Hajek performed right knee replacement surgery on July 14, 2003 because of the deterioration in the claimant’s condition. Dr. Palmer evaluated the claimant on January 21, 2004 and opined that the sole reason for the worsening of the claimant’s condition over time was the natural progression of her degenerative joint disease. Dr. Palmer also determined that the claimant’s need for knee replacement surgery would have resulted without the five percent apportionment related to her employment with Kodak. Dr. Hughes testified that the claimant’s degenerative condition would have existed even in the absence of her work with Kodak. Dr. Hughes also testified that the claimant would have required knee replacement surgery regardless of the occupational exposure she suffered while employed by Kodak.

ALJ Cannici concluded that the claimant had failed to establish that it was more likely than not that there was a causal connection between her work-related injury and subsequent wage loss. ALJ Cannici further concluded that the claimant had failed to establish that it was more likely than not that her right knee replacement surgery and subsequent revision surgery were reasonable and necessary to cure and relieve the effects of her occupational disease. Therefore, ALJ Cannici denied the request for TTD benefits from March 6, 2003 until terminated by statute and denied the request for medical benefits.

The claimant contends that the issue of medical benefits was not endorsed for hearing and therefore, ALJ Cannici erred in denying these benefits. We disagree.

The claimant’s Application for Hearing lists only the issue of TTD, and at the time of the hearing the claimant’s counsel stated that only the issue of TTD was before the ALJ. However, the response filed by the respondents did endorse the issue of “relatedness.” Furthermore, at the commencement of the hearing, respondents’ counsel stated that: “But in terms of the issue before the court, the question is, what has caused her worsening of condition that subsequently led to additional medical care, additional surgery and those things.” Tr. at 13.

Under these circumstances, the claimant was afforded the fundamental right to prior notice that the liability for specific workers’ compensation benefits would be determined by the ALJ Cannici. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990); Toma v. Holiday Inn-Pueblo W.C. 3-939-486 (February 24, 1994). In the respondent’s position statement the respondents argued that the claimant had to prove the knee surgery was related to the claimant’s employment at Kodak and argued that the need for surgery was due to the natural progression of her underlying condition. We conclude the claimant failed to preserve any due process argument. We do not find in the record an objection made by the claimant to the consideration of this issue. Pinon v. Luna Construction Co. W. C. Nos. 4-262-340, 4-258-257 (June 18, 1998). Furthermore, the issue of liability for medical benefits under the circumstances of this case is implicitly related to the request for TTD. Much of the testimony at the hearing is arguably relevant to the question of whether the claimant was entitled to TTD due to an alleged worsening of her condition from the industrial injury as evidenced by the medical treatment including surgery that she underwent. Therefore, we are not persuaded that the ALJ erred in ruling on the issue of medical benefits which was tried by implicit consent Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).

The claimant next contends that ALJ Cannici lacked jurisdiction to place the claimant at maximum medical improvement (MMI) prior to the authorized treating physicians doing so and that by dismissing the claim for medical benefits the ALJ effectively placed the claimant at MMI prior to 2003. The claimant notes that Dr. Hajek, an authorized treating physician, placed the claimant at MMI on June 14, 2005 and Dr. Reichhardt, a second authorized treating physician placed the claimant at MMI on March 7, 2006.

Respondents are obligated to provide medical benefits to cure or relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 2006; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). The obligation normally terminates at MMI and §8-42-107(8)(b) governs the determination of MMI for this purpose Rakestraw v. American Medical Response W. C. No. 4-384-349 (October 3, 2005) However, the respondents retain the right to dispute liability for specific medical treatment on grounds the treatment is not authorized or reasonably necessary to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997); Williams v. Industrial Commission, 723 P.2d 749
(Colo.App. 1986). This principle recognizes that the claimant bears the burden of proof to establish the right to specific medical benefits, and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990)

We understand ALJ Cannici’s order denying medical benefits to be based on the determination that surgeries were not reasonable and necessary to cure and relieve the effects of her occupational disease rather than on any premise that the claimant had achieved MMI. We perceive no error in ALJ Cannici order on medical benefits.

Citing Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995) and Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (Dec. 13, 1996), the claimant next argues that ALJ Cannici erred in denying TTD benefits after March 2003 because such a finding essentially determines that the occupational component ended in 2002. We find the authorities relied upon by the claimant to be factually inapposite.

Judge Harr in his original order in this matter credited testimony finding the claimant quit Kodak in 1999 for personal reasons unrelated to her bilateral knee condition. Exhibit R at 14. Judge Cannici in the order under present consideration found that the claimant failed to establish that there was a causal connection between her work-related injury and subsequent wage loss and denied the claimant for TTD subsequent to March 6, 2003.

In Story, supra, the Court of Appeals held that where the claimant disputes the validity of the primary treating physician’s determination of MMI, the ALJ lacks jurisdiction to resolve the issue without an IME under § 8-42-107(8)(b). In the present case the claimant contends that the neither party requested a DIME and that the claimant reached MMI on March 7, 2006 pursuant to Dr. Reichhardt’s report or Dr. Hajeck placed the claimant at MMI on June 14, 2005. Exhibit 6 at 8 and Exhibit 2 at 4. We do not think Story applies to the present case because as we read the claimant’s argument she is essentially contending that inherent in the authorized treating physician’s finding of MMI is a determination concerning the cause of the claimant’s condition. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996).

However, where the dispute concerning causation or relatedness involves only a scheduled impairment, the ALJ continues to have jurisdiction to resolve that dispute. Egan v. Industrial Claim Appeals Office, supra. Dr. Reichhardt in his report of March 7, 2006 only rated the claimant’s right knee because she did not mention any low back pain or left knee pain. Exhibit 6. Dr. Hajek in his report of June 14, 2005 only discussed the claimant’s right knee condition. Exhibit 2 at 4. Since the treating physician’s impairment ratings and opinions on MMI only related to the right knee we cannot say the ALJ erred in making determinations concerning causation or relatedness. We have considered the claimant’s remaining arguments andthey do not alter our conclusions.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 2, 2006 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

Judy Archuleta, Greeley, CO, Eastman Kodak, Ann Garbacz, Rochester, NY, The Morrell Law Office, Britton Morrell, Esq., Greeley, CO, (For Claimant).

Dworkin, Chambers Williams, P.C., David J. Dworkin, Esq., Denver, CO, (For Respondents).

Gallagher Bassett Services, Inc., Ellen Elliott Applegate, Englewood, CO.

Old Republic Insurance Co., Greensburg, PA.