W.C. No. 4-184-375Industrial Claim Appeals Office.
June 19, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied his requests for additional medical and permanent partial disability benefits. We affirm.
On August 23, 1993, the claimant suffered admitted injuries. On August 13, 1996, Dr. Scaer placed the claimant at maximum medical improvement (MMI) with 29 percent whole person impairment due to depression and permanent medical impairment to the thoracic spine, cervical spine, and right wrist. The respondents filed a Final Admission of Liability consistent with Dr. Scaer’s rating, and all admitted liability has been paid.
In 1997 the claimant was examined by Dr. Gerber, who opined that as a result of the industrial injury the claimant also suffers from bilateral forearm tendinitis, left hand problems, an inguinal hernia, a closed head injury, post traumatic stress disorder (PTSD), a tooth fracture and temporomandibular joint dysfunction (TMJ). Dr. Gerber rated the claimant’s permanent medical impairment as 41 percent of the whole person and recommended additional treatment.
On June 5, 1998, Dr. Orent performed a Division-sponsored independent medical examination (IME). Dr. Orent concurred with Dr. Scaer that the industrial injury was the cause of the claimant’s permanent medical impairment to the thoracic spine, cervical spine and right wrist, which he rated as 20 percent whole person impairment. Dr. Orent did not include any rating for the other medical and psychological problems identified by Dr. Gerber because he opined that the conditions either did not exist, or were unrelated to the industrial injury. Further, Dr. Orent did not recommend additional medical treatment.
On October 28, 1998, the respondents filed an Amended Final Admission of Liability consistent with Dr. Orent’s medical impairment rating. The claimant objected, and requested an award of permanent partial disability consistent with Dr. Gerber’s rating. The claimant also requested an award of future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The issues were presented by position statements and supporting documentary evidence.
The ALJ found the claimant failed to overcome Dr. Orent’s medical impairment rating. In so doing the ALJ credited Dr. Orent’s opinions concerning the cause of the claimant’s medical problems and the absence of a need for Grover type medical benefits. Therefore, the ALJ denied the claim for Grover type medical benefits and ordered the respondents to pay medical impairment benefits consistent with Dr. Orent’s 20 percent medical impairment rating plus Dr. Scaer’s 5 percent whole person rating for mental impairment. The claimant timely appealed.
I.
On appeal the claimant first contends the ALJ erroneously found that the “Claimant is not contesting the opinions of Dr. Orent concerning impairment and causation.” (Emphasis added). The claimant argues he did contest Dr. Orent’s opinions.
We agree with the respondents that the contested portion of the ALJ’s finding reflects a typographical error. The remainder of the ALJ’s order demonstrates the ALJ’s clear understanding that the claimant disputed Dr. Orent’s opinions and sought to overcome Dr. Orent’s impairment rating by “clear and convincing” evidence as required by section 8-42-107(8)(c), C.R.S. 1999. Therefore, the error is harmless and will be disregarded. Section 8-43-310
C.R.S. 1999; A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988) (error which is not prejudicial will be disregarded).
II.
Next, the claimant contends the ALJ’s denial of Grover type medical benefits is inconsistent with the ALJ’s finding that the claimant suffered compensable depression and injuries to the back, and right wrist. The claimant also contends that the ALJ’ written order is inconsistent with his oral ruling which required the respondents to pay for Dr. Montei’s psychological treatment. We reject these arguments.
The finding of a compensable injury does not necessarily entitle a claimant to Grover type medical benefits. Rather, the claimant’s entitlement to medical benefits terminate at MMI unless the claimant presents substantial evidence that future treatment will be reasonable and necessary to either relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. See Golden Animal Hospital v. Horton, 897 P.2d 833
(Colo. 1995); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
In this case, it is undisputed the claimant reached MMI from the admitted injuries. Further, on conflicting evidence, the ALJ was not persuaded that future medical treatment will be reasonable and necessary to cure or relieve the effects of the compensable injuries. The ALJ’s determination is supported by substantial albeit conflicting medical evidence and, therefore, must be upheld on review. Section 8-43-301(8), C.R.S. 1999. Under these circumstances, the ALJ was not compelled to award Grover type medical benefits.
Further, we have reviewed the transcript and find no support for the claimant’s contention that the ALJ’s oral ruling included an award of Grover type medical benefits, and required the respondents to pay for Dr. Montei’s treatment. The ALJ agreed that part of the claimant’s depression was caused by the industrial injury. However, the ALJ found that Dr. Montei’s treatment was not reasonably necessary to treat the effects of the injury because the industrial injury did not cause the claimant to suffer a closed head injury or develop PTSD. (Tr. pp. 24-26, 28).
In any case, it is the ALJ’s written order which is on review. See Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). Consequently, insofar as the ALJ’s written order is inconsistent with his oral ruling, we presume that the ALJ reconsidered the matter after the hearing, and that the written order accurately reflects his resolution of the claimant’s entitlement to Grover type medical benefits.
III.
The claimant also contends the ALJ erroneously allowed the respondents to retroactively withdraw their Final Admission of Liability and seek repayment for overpaid benefits. We disagree.
The Rules of Procedure, Part IV(N)(7), 7 Code Colo. Reg. 1101-3 at 6.03, provides that an insurer may:
“modify an existing admission regarding medical impairment whenever the medical impairment rating is changed pursuant to a binding IME, a division IME, or an Order.”
Here, the ALJ granted the respondents leave to file an amended final admission of liability consistent with his written order. The ALJ also determined that the respondents are entitled to a credit for overpaid temporary and permanent disability benefits. However, the ALJ did not purport to require the claimant to repay any permanent disability benefits. Furthermore, Rule IV(N)(7) prohibits an amended admission from affecting “an earlier award or admission as to monies previously paid,” and there is no statutory authority for the repayment of benefits overpaid in a 1993 injury claim. (Compare 1997 Colo. Sess. Laws ch. 47, § 8-42-113.5 at 113 allowing repayment of overpaid benefits for injuries occurring on or after July 1, 1997). Therefore, we reject the claimant’s argument.
IV.
Nevertheless, the claimant contends that the ALJ’s order denying additional medical and medical impairment benefits is not supported by substantial evidence in the record. Specifically, the claimant contends the ALJ’s findings are contrary to the opinions of Dr. Gerber and Dr. Montei.
Substantial evidence is probative 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 (Colo.App. 1996). It is the ALJ’s sole prerogative to resolve conflicts in the record, including conflicts between medical experts. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Further, substantial evidence is not determined by number of witnesses presented by each party. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961).
The claimant’s arguments notwithstanding, the ALJ’s findings of fact are supported by substantial evidence in the July 31, 1998 IME report of Dr. Orent, the September 4, 1996 report of Dr. Scaer, the April 17, 1997 report of Dr. Conyers, the June 15, 1998 report of Dr. Roth, the March 13, 1997 report of Dr. James, and Dr. Schwarz’s July 21, 1998 independent psychiatric evaluation. Consequently, it is immaterial that the opinions of Dr. Gerber and Dr. Montei if credited, might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The claimant’s remaining arguments have been considered and are not persuasive. We recognize that there was pre-hearing litigation concerning the claimant’s objection to Dr. Dahlberg’s appointment as the Division-sponsored IME physician. (See PALJ order March 5, 1998). However, the claimant has not identified any order, and we are unable to locate any order in the record, which precluded the ALJ from relying on Dr. Dahlberg’s January 20, 1998, record review of Dr. Montei’s treatment. Therefore, we reject the claimant’s contention that the ALJ’s consideration of Dr. Dahlberg’s report “poisons” the medical evidence and entitles him to a new hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 19, 1999, 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. 1999. 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 June 19, 2000
to the following parties:
Thomas Booth, Bee Booth, P. O. Box #5, Oldwick, N.J. 08858
Mike Ziegler, Rental City, Inc., 5401 Pearl Pkwy., Boulder, CO 80301
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Jack Taussig, Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Thomas E. J. Hazard, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701
BY: A. Pendroy