W.C. No. 4-348-069.Industrial Claim Appeals Office.
August 12, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied her petition to reopen based on an alleged worsening of condition. We affirm.
In 1996 the claimant filed a workers’ compensation claim which alleged an injury to her right upper extremity. Liability was admitted. The claimant subsequently overcompensated with her left arm and developed symptoms in her left upper extremity.
A Division-sponsored medical examination (DIME) physician diagnosed bilateral injuries to the upper extremities with the primary problem in the right upper extremity. In a report dated June 8, 1998, the DIME physician opined the claimant was not at MMI and referred the claimant for further evaluation to determine if she was a candidate for thoracic outlet surgery. After further evaluation, the claimant declined to undergo surgery. On November 5, 1998, the DIME physician opined the claimant reached MMI with 17 percent impairment to the right upper extremity and 17 percent impairment to the cervical spine for a total of 31 percent whole person impairment.
The respondents filed a Final Admission of Liability dated December 8, 1998, which admitted liability for medical impairment benefits based on 31 percent whole person impairment. The Final Admission denied liability for future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant did not object to the Final Admission and the claim was automatically closed.
Thereafter, the claimant sought treatment from her personal physician, Dr. Swanson, for complaints of increased pain. Dr. Swanson did not examine the claimant and referred her to Dr. Finn for evaluation. The claimant also petitioned to reopen the claim and alleged a worsening of the condition in her left upper extremity. The respondents refused voluntarily to reopen the claim and directed the claimant to undergo an IME by Dr. Gray.
The ALJ found the claimant failed to prove a worsening of her condition. In so doing the ALJ credited Dr. Gray’s opinions that there were no objective signs of a worsening of condition and the claimant’s increased pain complaints are part of the waxing and waning of her condition. Therefore, the ALJ denied the petition to reopen.
On review the claimant contends the ALJ erroneously determined issues that were resolved by the uncontested Final Admission. Specifically, the claimant contends the ALJ exceeded his jurisdiction in finding that the occupational disease caused an injury to the left upper extremity prior to MMI when the DIME physician found there was no injury to the left upper extremity at the time of MMI and neither party disputed the DIME physician’s opinion. The claimant also contends the issue of Grover-type medical benefits was closed and, therefore, the ALJ erred in finding the claimant needs Grover-type medical treatment.
The respondents contend the claimant did not raise these arguments before the ALJ. We conclude the claimant’s contentions do not establish a basis which affords us grounds to disturb the ALJ’s order. Under these circumstances, we do not address the respondents’ contention that the arguments were waived. Cf. Lewis v. Scientific Supply Co., 897 P.2d 905
(Colo.App. 1995) (the defense of waiver may be waived if not raised).
Section 8-42-107(8)(c), C.R.S. 2002, provides that the DIME physician’s “finding” of medical impairment, including a “finding that there is no permanent medical impairment” is binding unless the party disputing the DIME physician’s opinions presents clear and convincing evidence to the contrary. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). It is also well established that the DIME process requires the physician to diagnosis the injury and determine all losses caused by the industrial injury. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Wackenhut Corporation v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000).
However, we reject the claimant’s contention that insofar as the DIME physician does not assign a medical impairment rating, the DIME physician has determined there is no injury. Furthermore, the claimant does not point to any language in the Rules of Procedure, Part XIX(G), 7 Code Colo. Reg. 1101-3 at 126 and we cannot locate any language in that rule to support the claimant’s assertion that a 0 percent rating by a DIME physician for impairment to the left upper extremity equates to a finding that there was no injury to the left upper extremity.
In any case, we reject the claimant’s contention that the DIME physician found there was no injury to the claimant’s left upper extremity. Following his examination on June 8, 1998, the DIME physician diagnosed an “overuse syndrome involving bilateral upper extremities effecting the right greater than left,” and “chronic lateral epicondylitis, right side more than left.” The DIME physician also noted that diagnostic studies revealed mild bilateral sensory motor carpal tunnel syndrome, “minimally worse on right side,” which he diagnosed as mild entrapment neuropathy involving carpal tunnel.
Following his reexamination in November 1998, the DIME physician did not rescind the prior diagnosis. Rather, the DIME physician implicitly deferred to Dr. Synn’s opinion that the claimant has neurogenic thoracic outlet on the right, which is moderate to severe “with some neurogenic thoracic outlet on the left, mild to moderate.”
Because the DIME physician expressly found the occupational disease caused bilateral injuries to the upper extremities, the ALJ’s finding that the claimant had an injury to the left upper extremity at the time of MMI is not inconsistent with the DIME physician’s opinions.
Section 8-42-101(1), C.R.S. 2002, requires the employer to provide medical benefits to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). This obligation terminates at MMI but the claimant is entitled to Grover-type medical treatment where there is substantial evidence in the record to support a determination that future medical treatment will be reasonably necessary to maintain the claimant’s condition or prevent a further deterioration. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). However, Grover-type medical benefits are waived if not requested at the time permanent disability is determined. Hanna v. Print Expediters Inc., P.3d ___ (Colo.App. No. 02CA2237, June 5, 2003).
Further, a claim may be closed by a “final award” resulting from an admission. Burke v. Industrial Claim Appeals Office, 905 P.2d 1
(Colo.App. 1994). Once closed the claimant is precluded from receiving further benefits unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See § 8-43-303
C.R.S. 200 ; Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
We disagree with the claimant’s contention that the respondents’ denial of liability for Grover-type medical benefits in the Final Admission determined as a matter of law that the claimant did not requir Grover-type benefits at the time of MMI. Regardless of whether a treating physician or the DIME physician recommended future medical treatment, the respondents were free to deny liability and place the burden on the claimant to prove by a preponderance of evidence that she needed future medical treatment. This is true because the DIME physician’s opinion has no presumptive weight on the issue of Grover-type medical benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the claimant elected not to litigate her entitlement t Grover-type medical benefits at the time of MMI. However, that decision did not preclude the respondents from later asserting that there was some evidence the claimant needed Grover-type medical benefits that they did not foresee or the claimant chose not to present.
Moreover, we reject the claimant’s contention that the ALJ’s order is inherently inconsistent insofar as the ALJ found there was no worsening of condition but did not award Grover-type medical benefits. Contrary to the claimant’s contention, the ALJ did not determine the issue of future medical benefits was “closed to attack by the Claimant but open to attack by Respondents.” The ALJ did not adjudicate the claimant’s entitlement t Grover-type medical benefits. Nor did the ALJ purport to foreclose the claimant from reopening the issue on the grounds of mistake or error. To the contrary the ALJ merely determined that evidence of the claimant’s need for further treatment did not prove a worsened condition because Dr. Gray opined that the recommended treatment was to maintain the claimant at MMI and not improve the claimant’s condition.
Finally, the claimant contends evidence of medical restrictions imposed after MMI which did not exist at MMI established a worsening of her condition from the industrial injury. Again we disagree.
A worsening of condition for purposes of the reopening statute refers to a worsening of the claimant’s condition from the industrial injury after MMI. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Donohoe v. ENT Federal Credit Union, W.C. No. 4-171-210 (September 15, 1995). The determination of whether to reopen a claim is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may not disturb the ALJ’s determination in the absence of fraud or an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on appeal of an alleged abuse of discretion is whether the ALJ’s determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The ALJ was not persuaded any additional medical restrictions were imposed after MMI. Instead, the ALJ implicitly found that according to Dr. Gray no additional restrictions were necessary because the restrictions imposed in 1997 were “too stringent to begin with.” (Finding of Fact 14). In the absence of a transcript, we must assume the ALJ’s finding is supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, supra. Further, the ALJ’s finding supports the conclusion the claimant failed to prove a worsening of condition.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 4, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
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. 2002. 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 August 12, 2003 to the following parties:
Sharon K. Canales, 1026 N. Institute St., Colorado Springs, CO 80903
Betsy Crow, Peak Contract Manufacturing, Inc., 6113 Constitution Ave., Colorado Springs, CO 80915
Legal Department, Pinnacol Assurance — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Emily C. Hvizdos, Esq., 111 S. Tejon, #100, Colorado Springs, CO 80903 (For Respondents)
BY: A. Hurtado