W.C. No. 4-114-314Industrial Claim Appeals Office.
December 15, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ Mattoon) which denied a request for botox injections which the claimant sought under Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988). Because we are unable to ascertain the basis of one of the findings of fact, we remand for entry of a new order.
In 1991, the claimant sustained a compensable occupational disease affecting both upper extremities. ALJ Mattoon found this condition was diagnosed as bilateral carpal tunnel syndrome, bilateral Guyon’s syndrome and bilateral de Quervain’s syndrome. The claimant underwent five surgeries on the right wrist and two on the left. Ultimately, the claimant was placed at maximum medical improvement (MMI) in April 1997. Apparently, it is undisputed that the claimant is entitled to Grover style medical benefits after MMI.
ALJ Mattoon further found that in 1998 a treating physician, Dr. Hall, opined the claimant might be suffering from thoracic outlet syndrome (TOS) and referred the claimant for a surgical consultation. A vascular surgeon recommended surgery for TOS. Significantly, ALJ Mattoon found that Dr. Hall’s 1998 opinion was “the first serious suggestion” that the claimant might be suffering from TOS “despite being seen by numerous physicians for many years.” (Finding of Fact 4).
In 1999 the matter proceeded to hearing concerning the claimant’s request that the respondent pay for the TOS surgery. On August 18, 1999, ALJ Stuber entered a Summary Order crediting Dr. Morgan’s opinion that the the claimant “probably does not have TOS,” and stating the ALJ was not persuaded the TOS “is a natural consequence of the occupational disease.” Moreover, ALJ Stuber credited Dr. Morgan’s opinion that if the claimant has TOS surgery is not a reasonable and necessary treatment. (Respondent’s Exhibit D).
Later, the claimant filed a petition to reopen alleging a worsened condition. The claimant sought temporary disability benefits and again requested surgery for TOS. In an order dated November 26, 2002, ALJ Stuber found that the claimant “does not clearly have TOS necessitating surgery,” and “surgery would not be reasonably necessary or advisable.” Consequently, ALJ Stuber concluded the claimant failed to demonstrate any need to reopen the case and denied the petition.
In May 2002, Dr. Hall began injecting the claimant with botox for the purpose of relieving “cervicothoracic symptoms” which Dr. Hall associated with TOS. (Claimant’s Exhibit 1). However, ALJ Mattoon credited Dr. Morgan’s opinion that the claimant probably does not have TOS, and that “Dr. Hall is shooting bullets in the dark at an unknown enemy, and that this discourages the claimant from actively improving her condition and functioning with exercise to wean off of invasive passive treatments.” (Findings of Fact 11, 14). The ALJ also discredited the testimony of the claimant and the reports of Dr. Hall that the botox injections “improve” the claimant’s TOS symptoms. (Finding of Fact 15).
In light of these findings ALJ Mattoon concluded the claimant failed to present “sufficient persuasive evidence to demonstrate the botox injections are related to her industrial injury.” Moreover, ALJ Mattoon concluded the claimant failed to present “sufficient persuasive evidence that the botox injections relieve her of the effects of her work-related injury.” Thus the ALJ denied the request to have the respondent pay for the botox injections.
I.
On review, the claimant contends he was unfairly surprised that ALJ Mattoon considered and addressed the issue of whether the claimant has TOS, and, if so, whether that condition was caused by the industrial injury. According to the claimant’s brief “everybody knew the Thoracic Outlet Syndrome was compensable,” and the “compensability” of TOS was not an issue for hearing. Although the source of this alleged knowledge is not clearly discussed in the brief, we note that at the time of the hearing the claimant asserted the issue had been resolved in a prior order issued by ALJ Wheelock, and claimant’s counsel promised to provide ALJ Mattoon with a copy of that order after the hearing. (Tr. 11-12). The ALJ agreed to receive the order as evidence and consider it. We find no error.
The parties are entitled to know the issues to be determined by the ALJ so that they may present appropriate evidence and confront adverse evidence. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). However, the claimant had the burden of proof to establish a causal relationship between the industrial injury and the alleged need for botox injections. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
The claimant asserts that the requisite causal relationship was established prior to the hearing before ALJ Mattoon, and had been previously adjudicated by ALJ Wheelock. Thus, the claimant appears to be arguing that he met his burden of proof through the application of some legal doctrine such as collateral estoppel. However, the record does not contain ALJ Wheelock’ order, and apparently the claimant failed to produce it as he promised to do at the hearing. Claimant’s assertions containing the contents of documents not contained in the record cannot substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
Aside from the fact that the claimant had the burden of proof on the issue of causation, the record does not support the assertion that he was surprised that the respondent sought to litigate the issues of whether the claimant has TOS, and, if so, whether that condition was caused by the industrial injury. To the contrary, ALJ Stuber’s Summary Order dated August 18, 1999, reveals the respondent successfully litigated both of these issues when disputing the claim for surgery to treat TOS. Although the 2002 order concerning the petition to reopen is less clear, ALJ Stuber again found that the claimant “does not clearly have TOS.” Thus, when litigating the reopening issue the respondent again disputed the existence of the condition for which the claimant sought treatment. In neither decision is there any indication that ALJ Stuber considered the existence and cause of TOS to be a previously determined issue which could not be relitigated. Thus, we see no evidentiary basis for the claimant’s contention that the causation issue had been resolved in her favor and that he was surprised in May 2003 when the respondent once again disputed both the existence of and the cause of the alleged TOS.
II.
The claimant next contends there is not substantial evidence to support Finding of Fact 5, which determined that ALJ Stuber found the TOS was not caused by the industrial injury. The claimant further argues there is not substantial evidence to support Finding of Fact 4, in which ALJ Mattoon found that in 1998 Dr. Hall opined the claimant was suffering from TOS, and this was “the first serious suggestion the claimant might be suffering from this syndrome, despite being seen by numerous physicians.”
We disagree with the claimant’s argument concerning Finding of Fact 5. As discussed above, ALJ Stuber’s August 1999 Summary Order fully supports Finding of Fact 5.
However, we agree with the claimant that Finding of Fact 4, as presently constituted, is not supported by substantial evidence and indicates ALJ Mattoon failed to resolve pertinent conflicts in the evidence. Section 8-43-301(8), C.R.S. 2003. Substantial evidence “is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences.” Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524, 527-528 (Colo.App. 1996). However, a finding that no evidence exists to support a proposition may not be converted into a finding that no credible or persuasive evidence exists. This is true because, although an ALJ may reject evidence on credibility grounds, the decision to do so must be articulated. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
Finding of Fact 4, read in conjunction with Findings of Fact 11 through 13, reflects ALJ Mattoon’s decision to credit Dr. Morgan’s opinion that the claimant probably does not have TOS, but if she does it is not related to the industrial injury. Dr. Morgan’s opinion is based, to a substantial degree, on his reading of the medical records which he interpreted as lacking evidence of a TOS diagnosis or symptoms prior to 1998. Indeed, Dr. Morgan emphasized that his review of the medical records indicates that it was not until June 1988 that there was “any mention of signs or symptoms by any physicians or the therapists that evaluated [the claimant] that could be remotely suggestive of” TOS. (Report of Dr. Morgan, February 23, 1999). Dr. Morgan reiterated this view in his testimony at the hearing. (Tr. P. 41).
However, Dr. Morgan’s reports and testimony notwithstanding, the record does contain some evidence that there was a medical diagnosis of TOS and a report of symptoms consistent with TOS well before 1998. ALJ Stuber’s order of November 26, 2002, contains a finding of fact expressly addressing such evidence. In Finding of Fact 4 ALJ Stuber found that in August 1992 Dr. Hall reported “some thoracic outlet symptomology” related to altered body mechanics.
Thus, it appears ALJ Mattoon credited the testimony of Dr. Morgan that there was no medical evidence or documentation of TOS and related symptoms before 1998. However, the ALJ was apparently unaware that medical evidence of such diagnosis and symptoms does exist in the record, and consequently the ALJ failed to determine whether such evidence is credible, and, if so, the effect of that determination on Dr. Morgan’s credibility. Under the circumstances here, we cannot convert the ALJ’s finding that the “first serious suggestion” of TOS occurred in 1998 into a finding that the “first credible diagnosis” of TOS occurred in 1998. The matter must be remanded to resolve the conflict in the record, and to reevaluate the evidence, including the reports and testimony of Dr. Morgan, in light of the ALJ’s determination.
In reaching this result, we are aware that the issue of causation is distinct from the issue of whether, if causation is established, botox treatments are reasonable and necessary. However, a determination that Dr. Morgan is not credible on the causation issue might also influence the ALJ’s judgment concerning Dr. Morgan’s testimony regarding the advisability of botox treatments. (See Finding of Fact 13). Consequently, we cannot uphold the order on the theory that, even if the causation issue is resolved in the claimant’s favor, the evidence still supports the ALJ’s determination that the botox treatments are not reasonable and necessary.
In reaching this result, we should not be understood as expressing an opinion concerning the factual issues to be resolved nor the credibility of any witness. These matters are for resolution by the ALJ on remand. In light of this determination, we need not reach the other issues raised by the claimant.
IT IS THEREFORE ORDERED that the order of ALJ Mattoon dated June 5, 2003, is set aside, and the matter is remanded for entry of a new order consistent with the view expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on December 15, 2003 by A. Hurtado.
Gloria Berumen, 485 Crestmoor Rd., Canon City, CO 81212
George Shipley, Arapahoe County Department of Social Services, Personnel Department, 5334 S. Prince St., Littleton, CO 80166
Norma Sanchez, County Technical Services, 1700 Broadway, #1512, Denver, CO 80202
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Anne Smith Myers, Esq. and Willow I. Arnold, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondent)