W.C. No. 3-107-451Industrial Claim Appeals Office.
December 15, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded the claimant permanent partial disability benefits under § 8-42-107(8), C.R.S. (1995 Cum. Supp.), and future medical benefits. We affirm.
The ALJ found that the claimant sustained compensable injuries to his back, right shoulder and face on February 6, 1993. On June 22, 1994, the treating physician, Dr. Heil, determined the claimant to be at MMI. Subsequently in correspondence dated, May 19, 1995, Dr. Heil wrote:
“I feel Mr. Brock did receive at least a minor head injury in his accident on February 6, 1993. It would seem reasonable to have an evaluation by John Gustafson to see if any long term sequelae is present. Please take this as a referral for Mr. Brock to see John Gustafson for a psychological assessment.”
The ALJ also found that the claimant underwent a Division sponsored independent medical examination by Dr. Knackendoffel, who rated the claimant’s permanent medical impairment as 26 percent of the whole person due to impairment of the spine and right shoulder.
Relying on Mountain City Meat Co., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CE0015, January 26, 1995), cert. granted
October 30, 1995, the ALJ awarded permanent partial disability benefits based upon medical impairment of 26 percent of the whole person. The ALJ also concluded that the claimant sustained his burden to prove a need for medical benefits beyond maximum medical improvement (MMI). Therefore, the ALJ ordered the respondents to provide future medical benefits including a psychological assessment in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) (Grover).
I.
The respondents first contend that the record does not support the award of Grover medical benefits. The respondents argue, in part, that Dr. Heil’s determination of MMI is inconsistent with the award of future medical benefits. We disagree.
Under § 8-40-201(11.5), C.R.S. (1995 Cum. Supp.), which is applicable here, MMI occurs when the claimant’s medical impairment is stable and “no further treatment is reasonably expected to improve the condition.” I Grover v. Industrial Commission, supra, the Supreme Court held that the determination of MMI does not preclude an award of future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to cure and relieve the effects of an industrial injury or prevent further deterioration
of the claimant’s condition. Subsequently, in Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992), the Court of Appeals held that Grover
requires the claimant to prove:
“that but for a particular course of medical treatment, a claimant’s condition can reasonably be expected to deteriorate, so that he will suffer a greater disability than he has sustained thus far.”
Therefore, a determination that future treatment will not improve the claimant’s measurable impairment is not inconsistent with a finding that future treatment is necessary to prevent the claimant from suffering a greater impairment.
Furthermore, in Stollmeyer v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 94CA1798, September 14, 1995), the Court of Appeals rejected the notion that Milco Construction requires evidence that a “particular” or “specific course of treatment” is anticipated. However, the Stollmeyer court did hold that the claimant has not sustained his burden of proof if there is no evidence of a prescription or recommendation for any course of future medical treatment.
Admittedly, the Stollmeyer court also concluded that possible degenerative changes do not equate to a need for future medical treatment, because certain degenerative changes cannot be prevented or relieved by medical treatment. However, in this case, Dr. Heil specifically identified a form of treatment which he believed would prevent or relieve the claimant from future deterioration. Consequently, these facts are distinguishable from the circumstances contemplated in Stollmeyer.
Similarly, Dr. Heil made a specific written recommendation and referral for a “psychological assessment.” Dr. Heil’s referral also implicitly includes a recommendation for active treatment if the psychological assessment reveals any “long term sequelae” from the head injury. Therefore, unlike the facts in Stollmeyer, this record contains evidence of an actual “prescription or recommendation” for treatment.
Contrary to the respondents’ assertion, Dr. Heil’s report is sufficient to support a finding that the claimant sustained at least a minor head injury during the industrial accident. Further, the claimant testified that he has not been treated for a head injury and as a result of the accident is having problems with his right eye, difficulty reading for long periods of time and increasingly experiences headaches and migraines. (Tr. pp. 10, 12). Based upon this evidence, the ALJ could, and did infer, that but for a psychological evaluation to determine the “long term sequelae,” if any, of the claimant’s head injury, the claimant’s condition can be expected to deteriorate.
Lastly, we have previously stated that the Colorado Workers’ Compensation Act does not draw a distinction between “active treatment” and diagnostic procedures with regard to the respondents’ statutory obligation to provide medical treatment reasonably necessary to “cure or relieve” the effects of the injury. Section 8-42-101(1), C.R.S. (1995 Cum. Supp.) Merriman v. Industrial Commission, 210 P.2d 448 (Colo. 1949) (exploratory surgery compensable to ascertain extent of the industrial injury); Atwood v. Western Slope Industries, W.C. No. 3-069-135, November 28, 1994 (medical monitoring compensable). In fact, the respondents concede that once the claimant establishes a need for future medical treatment, “such medical treatment irrespective of its nature, must be looked upon as treatment designed to relieve the effects of the injury or prevent deterioration of the claimant’s present condition.” Milco Construction v. Cowan, 860 P.2d 542. Therefore, we reject the respondents’ argument that Dr. Heil’s recommendation for a “psychological evaluation” is not substantial evidence that the claimant needs future medical “treatment.”
II.
The respondents also contend that the ALJ should have compensated that portion of the claimant’s impairment involving the right upper extremity under the schedule of disabilities at § 8-42-107(2), C.R.S. (1995 Cum. Supp.). We reject this argument.
As the respondents concede, the Court of Appeals rejected their position in Mountain City Meat Co., v. Industrial Claim Appeals Office supra; see also Durocher v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. Nos. 94CE0024 94CE0025, May 18, 1995). The respondents contend that Mountain City Meat Co. was wrongly decided, and seek to preserve their argument pending review by the Supreme Court.
However, we are bound by published opinions of the Court of Appeals. C.A. R. 35(f). Therefore, we must affirm the ALJ’s award of medical impairment benefits in accordance with Mountain City Meat Co. v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 8, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 15, 1995 to the following parties:
Ronald Brock, 394 27-1/2 Road, Grand Junction, CO 81503
Jack Brach d/b/a Jack Brach Sons Trucking, 1265 N-3/4 Road, Loma CO 81524
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
(For the Respondents)
Connie Ward, Esq., P.O. Box 4848, Grand Junction, CO 81502
(For the Claimant)
BY: _______________________