W.C. No. 4-282-923Industrial Claim Appeals Office.
March 10, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant is not at maximum medical improvement (MMI) and directed the respondents to provide ongoing medical benefits including surgery. We affirm.
The claimant suffered an occupational disease to her left shoulder. In December 1995 the claimant underwent shoulder surgery. However, the claimant continued to experience shoulder pain. On April 23, 1996, the claimant underwent a laser capsulorrhaphy by Dr. Hawkins.
Dr. Mack of the Steadman Hawkins Clinic determined the claimant to be at MMI on September 17, 1997. The claimant subsequently requested a Division-sponsored independent medical examination (IME) on the issue of MMI. In a report dated December 2, 1997, the IME physician, Dr. Gulevich, indicated that the claimant reported continuing symptoms of left shoulder pain which limited movement. However, Dr. Gulevich opined that is was “unlikely” the claimant’s condition would change substantially with further medical treatment, and therefore, he agreed with Dr. Mack’s determination of MMI.
The ALJ found that subsequent to December 2, 1997, the claimant continued to experience pain and the sensation of instability in her left shoulder. Consequently, the claimant returned to the Steadman Hawkins Clinic where she was examined by Dr. Dorris. In a report dated February 3, 1998, Dr. Dorris recommended a repeat capsulorrhaphy. Dr. Hawkins agreed.
At the respondents’ request, the claimant was also examined by Dr. Waller, who agreed that the repeat surgery may relieve the claimant’s symptoms from the injury. Crediting the opinions of Dr. Dorris, Dr. Hawkins, Dr. Waller, and Dr. Mack’s deposition testimony, the ALJ determined the claimant overcame Dr. Gulevich’s finding of MMI by clear and convincing evidence. The ALJ also determined that the surgery recommended by Dr. Waller and Dr. Dorris is reasonable and necessary to cure and relieve the effects of the injury. Therefore, the ALJ ordered the respondents to pay for the cost of the surgery.
On review, the respondents contend that the claimant’s condition was stable on July 17, 1998, and that the evidence on which the ALJ relied only supports a finding that the claimant’s condition worsened after MMI. The respondents also contend that Dr. Mack’s deposition does not support the ALJ’s finding. Therefore, they contend that there is not sufficient evidence in the record to support the ALJ’s finding that the claimant overcame Dr. Gulevich’s finding of MMI. We disagree.
Section 8-40-201(11.5), C.R.S. 1998, defines MMI as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Thus, a finding of MMI is premature where a course of treatment exists that has a reasonable prospect of improving the claimant’s condition and the claimant is willing to submit to the treatment See Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080
(Colo.App. 1990); cf. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995).
The question of whether the claimant presented “clear and convincing” evidence that the IME physician incorrectly determined MMI is one of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
Application of the substantial evidence test requires that we defer to the ALJ’s assessment of the probative value of the evidence. Metro Moving Storage Co. v. Gussert, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122
(Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Furthermore, where the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to resolve the conflicts, and we may not substitute our judgment for that of the ALJ concerning the inferences to be drawn from the record. Metro Moving Storage Co. v. Gussert, supra.
Moreover, on review we must view the evidence in the light most favorable to the prevailing party. Accordingly, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, supra.
Regardless of whether the claimant’s condition was stable in July 1997, the record contains conflicting medical evidence concerning whether the claimant’s condition could be improved with additional treatment. The March 2, 1998 medical report of Dr. Dorris indicates that the claimant reported complaints of pain and instability in her left shoulder, difficult sleeping and problems performing overhead activities. Dr. Dorris suspected a minor instability causing recurrent pain and stated that a “repeat thermal capsulorrhaphy may help alleviate some of these symptoms.”
Following an examination on May 21, 1998, Dr. Waller diagnosed persistent chronic recurrent impingement syndrome of the left shoulder. Even though the claimant previously underwent a subacromial join decompression, Dr. Waller opined that the claimant’s left shoulder was not adequately decompressed in the subacromial region. He also stated that ten percent of patients with these problems form enough scar tissue to develop recurrent impingement and that the claimant has fewer chances of developing scar with a repeat arthroscopic surgery using the Holmium laser. The ALJ could reasonably infer from the medical reports of Dr. Dorris and Dr. Waller that the claimant was not at MMI in July 1997 because further surgery had a reasonable prospect of reducing the claimant’s persistent pain.
Furthermore, even though Dr. Mack disagreed with the recommendation for further surgery, in his May 28, 1998 report, he essentially deferred to Dr. Hawkins’ opinion on that issue. Dr. Mack also recommended the claimant engage in an exercise program and anticipated that it would improve the claimant’s condition. (Mack depo. p. 39). The ALJ explicitly credited this portion of Dr. Mack’s testimony. Finding of Fact 9. Consequently, Dr. Mack’s testimony supports the ALJ’s determination that there is further medical treatment available to the claimant which is reasonably designed to improve her condition.
Accordingly, the record contains substantial evidence to support the ALJ’s finding that the claimant sustained her burden to prove it is highly likely Dr. Gulevich incorrectly determined MMI. The fact that the evidence might also support the finding of a worsened condition is immaterial on review.
The respondents also contend that the issue of ongoing medical benefits was not endorsed for adjudication and was not tried by consent. Therefore, the respondents argue the ALJ erroneously ordered them to pay for the recommended surgery.
The claimant concedes that the issue of ongoing medical benefits was not expressly endorsed for hearing. However, the claimant contends that authorization for surgery was inherent to the issue of MMI. We agree with the claimant’s argument.
In her motion to add the issue of MMI, the claimant asserted that she was not at MMI because additional surgery had been recommended to relieve her symptoms from the industrial injury See claimant’s Motion to Add Issue dated March 23, 1998. It is also clear from Dr. Mack’s deposition that the respondents understood the issue to be whether the recommended surgery was reasonable and necessary to improve the claimant’s condition. See
Mack depo. pp. 5, 24.
At the hearing on June 17, 1998, the respondents’ counsel cross-examined the claimant concerning whether the proposed surgery was reasonably designed to improve her condition. (Tr. p. 19). In fact, the respondents’ attorney stated that the question of whether the proposed surgery was reasonable and necessary was implicitly endorsed. (Tr. p. 26). Under these circumstances, we conclude that approval for additional surgery was inherent in the claimant’s contention that she is not at MMI and that the issue of whether ongoing medical benefits were “reasonable and necessary” was tried by consent. Consequently, the ALJ did not exceed his authority in awarding ongoing medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ Kathy E. Dean _______________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 10, 1999
to the following parties:
Celette Berger, 121 W. 4th, Leadville, CO 80461
Dennis Dean, Wal-Mart, Inc., PO Box 4220, Frisco, CO 80443-4220
Jon Causseaux, Claims Management, Inc., 3901 Adams Road, Suite C, Bartlesville, OK 74006-8458
Jeffrey S. Auxier, Esq., PO Box 2891, Edwards, CO 81632 (For Claimant)
Richard W. Bovarnick, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Avenue, Suite 400, Denver, CO 80227 (For Respondents)
BY: ________________