IN RE AZAR, W.C. No. 4-354-936 (6/9/2005)


IN THE MATTER OF THE CLAIM OF RIMONA AZAR, Claimant, v. MERVYN’S, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 4-354-936.Industrial Claim Appeals Office.
June 9, 2005.

FINAL ORDER
The claimant seeks review of the order of Administrative Law Judge Jones (ALJ) dated December 2, 2004, granting the respondents’ request to terminate maintenance medical benefits in the form of psychological treatment and medications. The claimant contends that the respondents’ final admission of liability (FAL) compelled them to continue to pay the disputed medical benefits, that the need for treatment continues to be caused by the compensable injury, and that the doctrine of laches precluded the relief granted by the ALJ. We affirm.

The ALJ’s pertinent findings of fact are as follows. The claimant sustained an admitted injury in 1997 to her elbows, arms, shoulders, and neck, and was placed at maximum medical improvement (MMI) on April 28, 1998 by Dr. Justin Green, an authorized treating physician. She underwent a division-sponsored independent medical examination (DIME) by Suzanne Brailliar, D.O., who reported that the claimant had not reached MMI on account of untreated depression. The claimant subsequently received treatment from Steven Miller, M.D., a psychiatrist who diagnosed a mood disorder, chronic pain, a somatoform disorder, and major depression. Dr. Miller prescribed medication that included an anti-depressant, Celexa, Concerta, and Trazadone, and saw the claimant once every month to renew her prescriptions and to discuss her psychological condition.

Steven Moe, M.D., a psychiatrist, performed an independent medical examination of the claimant at the respondents’ request. Dr. Moe testified that the claimant suffers from a depressive disorder, but that her need for continued treatment is not the result of the compensable condition. The ALJ expressly credited Dr. Moe’s opinions as persuasive and found that the claimant’s need for continued psychological treatment is not reasonable, necessary, or the result of the compensable injury. The ALJ also found, however, that treatment to “wean” the claimant from her medication was reasonable, necessary, and related to the compensable injury.

Based upon these findings, the ALJ granted the respondents’ request to discontinue the maintenance medical benefits previously being provided. However, the ALJ ordered the respondents to provide to the claimant the treatment necessary to wean her from those medications.

On appeal the claimant first argues that the respondents were bound by their FAL to continue to pay for the psychiatric treatment for which they had admitted. She argues that the respondents were required to challenge the existence of a compensable psychiatric condition within thirty days of the FAL, and that their failure to do so precluded them from subsequently contesting medical care without first filing a petition to reopen. We disagree with the claimant’s argument.

Contrary to the claimant’s argument, the respondents’ FAL admitting for post-MMI medical treatment pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) did not preclude them from later contesting their liability for particular treatment. An award of Grover medical benefits is general in nature and is subject to the respondents’ subsequent right to challenge particular treatment. Thus, in Hanna v. Print Expediters Inc., 77 P.3d 863, 866 (Colo.App. 2003) the court of appeals addressed precisely this question: “Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the employer’s right to contest compensability, reasonableness, or necessity.” (Citations omitted).

Moreover, the proximate cause of the need for medical treatment is a question of fact for the ALJ to resolve. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Although causation need not be proved by medical evidence, to the extent it is offered, it is for the ALJ to assess its weight, credibility, and probative effect. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Because the question of the need for medical treatment is one of fact, we must defer to the ALJ’s resolution of conflicts and inconsistencies in the record, and must uphold her findings if supported by substantial evidence. §8-43-301(8), C.R.S. 2004; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).

The ALJ’s order concluding that the claimant’s present psychiatric treatment is not causally related to her compensable condition is supported by substantial evidence in the record. Dr. Moe testified as an expert in the fields of medicine and psychiatry that he had examined the claimant, reviewed her medical record, and that he had concluded that her need for psychiatric treatment was not causally related to her industrial accident. Tr. at 67. Dr. Moe’s testimony and written report, see
respondents’ hearing exhibit B, provide substantial evidence supporting the ALJ’s finding that the need for continued psychiatric treatment is not the result of the compensable injury, and that finding is binding on review. See § 8-43-301(8), C.R.S. 2004. The existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).

The claimant also argues that, even if the claimant suffered from a preexisting psychological disorder, it was asymptomatic until the industrial injury aggravated or accelerated it. The claimant correctly notes that the aggravation or acceleration of a preexisting condition by a work-related injury will generally require the respondents to provide medical treatment. This principle, however, although correctly stated, did not compel the ALJ to conclude that the claimant’s need for ongoing treatment was the result of the compensable injury. Whether that treatment was caused by an aggravation of a preexisting condition was a factual question to be resolved in the ALJ’s determination of the question of the respondents’ liability for continued medical benefits. The ALJ was not required to enter findings regarding this theory of the claimant’s case. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).

Finally, the claimant contends that, by consenting to provide ongoing psychological treatment, the respondents should be barred by the doctrine of laches from seeking to discontinue that treatment. The claimant argues that the treatment has continued to the point where its cessation would imperil the claimant’s health. The respondents’ inaction to this point, the claimant argues, should preclude them from now claiming that the treatment should be discontinued. We disagree.

The doctrine of laches is an equitable defense which may be raised where a party’s unconscionable delay in asserting its legal rights prejudices the opposing party’s defenses or causes the opposing party to detrimentally change its position. Cullen v. Phillips, 30 P.3d 828
(Colo.App. 2001); Bacon v. Industrial Claim Appeals Office, 746 P.2d 74
(Colo.App. 1987). The prejudice “must necessarily result from reliance which is justifiable under the circumstances.” City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 74 (Colo. 1996).

We agree with the ALJ’s implicit determination that the respondents did not unconscionably delay in asserting their legal rights. As noted, an FAL containing a general admission for Grover medical benefits preserves the respondents right to challenge particular medical treatment in the future. Hanna v. Print Expediters Inc., supra. Here, there was no showing of any unwarranted or lengthy delay in the respondents’ assertion of their legal rights following their receipt of the opinion that the claimant’s ongoing medical care was not related to the compensable condition. Therefore, the ALJ did not err in concluding that the doctrine of laches was inapplicable.

IT IS THEREFORE ORDERED that the ALJ’s order dated December 2, 2004 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________ Kathy E. Dean
___________________ Curt Kriksciun

Rimona Azar, Broomfield, CO, Mervyn’s, Boulder, CO, Mervyn’s, Minneapolis, MN, Barbara McDaniel, St. Paul Travelers, Denver, CO, Michael P. Dominick, Esq., Boulder, CO, (For Claimant).

Lawrence D. Blackman, Esq., Denver, CO, (For Respondent).