W.C. No. 4-358-465.Industrial Claim Appeals Office.
September 24, 2008.
ORDER ON REMAND
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated April 15, 2008, that denied her claim for medical benefits and terminated temporary total disability (TTD) benefits after finding that the claimant was returned to light duty restrictions. We affirm the award of TTD benefits, but set aside the order to the extent that it denies medical benefits and terminated TTD benefits, and remand this matter for further consideration and additional findings.
The ALJ’s findings of fact are summarized as follows. The claimant sustained an industrial injury to her lower back on September 17, 1997 and reached maximum medical improvement on May 7, 1998, with permanent restrictions prohibiting repetitive lifting over 20 pounds. The claimant obtained medical treatment with her personal medical provider, Kaiser Permanente, on June 10, 1998. On June 22, 1998, the claimant sought additional treatment from Kaiser Permanente, which the respondent insurer denied because Kaiser Permanente was not considered by the insurer to be authorized to provide medical treatment to the claimant. A Division-sponsored independent medical examiner agreed with the treating physician that the claimant reached maximum medical improvement and provided a whole person impairment rating, but did not recommend additional medical care. The respondents filed a final admission on September 3, 1998. The claimant did not object to the admission and her claim closed.
The claimant underwent a lumbar fusion surgery through Kaiser Permanente on August 1, 2001. About 14 months later, the hardware was removed from her back. The claimant suffered another injury to her lower back on October 19, 2002, due to a motor
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vehicle accident unrelated to work and received extensive medical treatment due to the auto accident.
The claimant later sought to reopen her claim. Another administrative law judge entered an order reopening the claim due to a worsening of the claimant’s condition; however, that administrative law judge restricted the worsening to the time period extending from the date of the respondents’ final admission of liability, September 3, 1998, to the claimant’s auto accident on October 19, 2002.
Two physicians testified concerning the claimant’s medical condition and restrictions. Both physicians described the claimant as capable of performing work with physical restrictions after recovering from her surgery in August 2001. The ALJ found that the claimant’s “worsened condition caused a greater impact on her work capability than she originally sustained as a result of her industrial injury for the period August, 1, 2001 until November 7, 2001.” Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 15. The ALJ went on to terminate the claimant’s TTD benefits, effective November 7, 2001, based upon a physician’s opinion that the claimant would by that date be subject to light duty work restrictions of no lifting over 20 pounds, which was the claimant’s work restriction at the time of reaching maximum medical improvement.
The ALJ also found that the claimant failed to show that she received authorized medical treatment from Kaiser Permanente for the period of February 17, 2001 to October 1, 2002. The ALJ based this determination on his finding that the insurer had responded to the claimant’s request on June 22, 1998 for treatment from Kaiser Permanente by notifying the claimant that it denied treatment because Kaiser Permanente was not an authorized provider.
On appeal, the claimant challenges the termination of her TTD benefits and the denial of medical benefits through Kaiser Permanente. The claimant also challenges the ALJ’s findings pertaining to medical treatment she obtained after her auto accident. We conclude that the ALJ’s determinations concerning medical treatment and the termination of TTD benefits are not supported by applicable law and remand this matter for the ALJ’s further consideration. Section 8-43-301(8), C.R.S. 2008.
I.
Concerning the ALJ’s denial of medical treatment by her private health care providers at Kaiser Permanente, the claimant asserts that the ability to select a physician passed to her after she filed her petition to reopen. We conclude that the ALJ must consider the effect of the claimant’s petition to reopen on the claimant’s entitlement, if any, to medical treatment by Kaiser Permanente for the relevant period of time.
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Section 8-42-101(1)(a), C.R.S. 2008, provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). “Authorization” generally refers to the legal authority to treat, and is distinct from whether treatment is “reasonable and necessary” within the meaning of § 8-42-101(1)(a). Braun v. Foley’s Department Stores, W. C. No. 4-603-819 (February 28, 2005). See also, One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501, 504 (Colo.App. 1995) (“authorized medical benefits” refers to legal authority of provider to deliver care).
Here, the ALJ determined that the claimant was put on notice by the insurer in or around June 1998 that it denied authorization for treatment by Kaiser Permanente. We note that the insurer’s action took place prior to the closing of the claim by the filing of an uncontested final admission of liability in September 1998, but after the claimant was initially placed at maximum medical improvement on May 7, 1998. According to the ALJ’s findings, the insurer denied treatment by Kaiser Permanente on the basis of such treatment being unauthorized, rather than questioning whether it was reasonable and necessary. The insurer’s obligation to provide treatment to “cure” or improve the claimant’s condition terminates when the claimant reaches MMI because, at that point the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2008. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16
(Colo.App. 1995). However, Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988), holds that a claimant may be entitled to medical benefits after MMI if there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. In any event, the insurer denied authorization for medical treatment by Kaiser Permanente prior to the closing of the claim by the filing of the final admission of liability. We do not understand the respondents to be asserting that they expected the claimant to obtain additional medical care once the claim closed. Instead, the respondents assert that the claimant delayed bringing her petition to reopen to hearing and failed to seek actual medical benefits when the matter ultimately came before another administrative law judge in 2005. Respondent’s Brief in Opposition at 6.
Under § 8-43-404(5)(a), C.R.S. 2008, the employer or insurer is afforded the right in the first instance to select a physician to treat the injury. We have stated that “where the respondents fail to authorize a physician upon notice the claimant seeks to reopen the claim the right to select the physician passes to the claimant and the physician chosen by the claimant becomes an authorized treating physician.” Clark v. Avalanche Industries Inc., W. C. No. 4-471-863 (March 12, 2004), Slip op. at 2-3. See also, Wright v. City and County of Denver, W.C. No. 4-172-291 (December 4, 1995); Mathis v. Hildebrand Care Center, W.C. No. 3-744-785, (November 30, 1987), affd, No. 87CA1922, (Colo.App.
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July 28, 1988) (not selected for publication). However, the questions “whether the claimant notified the respondents] of her request to reopen the claim prior to the selection of a treating physician, and whether the respondents] designated a physican who was willing to treat the worsened condition are questions of fact for resolution by the ALJ.”Gonzales v. Crowley County Nursing Center, W.C. No. 4-250-651 (November 27, 2000), slip. op. at 5.
Here, the medical benefits at issue were rendered from February 17, 2001 to October 1, 2002, more than two years after the insurer denied authorization for treatment by Kaiser Permanente and after the respondents effectively closed the claim by filing a final admission of liability on September 3, 1998. Moreover, the medical benefits sought by the claimant were primarily provided after the claimant filed her first petition to reopen dated February 16, 2001, as indicated by the record. Exhibit 6 at 65. Nonetheless, the respondents assert that medical benefits were not identified by the claimant as an issue until after the order of another administrative law judge after conducting a hearing on October 12, 2005 that reopened the claim. Exhibit 1; Tr. at 18. We conclude that this matter must be remanded to the ALJ for a determination of whether under the circumstances the right to select a physician passed to the claimant upon her filing of her petition to reopen her claim. Furthermore, we express no opinion as to whether the claimant established the necessary causal connection between her industrial injury and her medical treatment, or whether such treatment was reasonable and necessary.
II.
The claimant also challenges the ALJ’s decision to award TTD benefits only until November 7, 2001, when the claimant was found to have returned to light duty work restrictions to lift no more than 20 pounds that were imposed at the time of the claimant reaching maximum medical improvement. We conclude that the ALJ must make additional findings as to whether the claimant’s entitlement to TTD benefits terminated.
To prove entitlement to TTD the claimant must prove the industrial injury caused a “disability.” § 8-42-103(1), C.R.S. 2007; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term “disability,” as used in workers’ compensation cases, connotes two elements. The first is “medical incapacity” evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant’s inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of “disability” may be evidenced by showing a complete inability to work, or by physical restrictions, which impair the claimant’s ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998).
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Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). We must uphold the ALJ’s determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the ALJ found that the claimant proved by a preponderance of the evidence her entitlement to TTD benefits. However, the ALJ determined that those TTD benefits should end at the point when the claimant returned to the lifting restrictions imposed at the time she attained maximum medical improvement. Once TTD benefits are awarded due to a worsening of condition, they continue until the respondents prove the occurrence of one of the statutory conditions in § 8-42-105(3)(a)-(d), C.R.S. 2008. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790, 792 (Colo.App. 2000) (admission for closed period of TTD benefits must conform to statutory ground for termination under § 8-42-105(3)); Fantin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007) (TTD benefits awarded due to worsening must end pursuant to § 8-42-105(3)(a-(d) instead of under (4), termination for cause). We conclude that the ALJ erred in terminating the award of TTD benefits based on the claimant’s return to the lifting restrictions imposed upon reaching maximum medical improvement. See Miller v. Source One Management, W.C. No. 4-418-173 (December 19, 2003). It is therefore necessary under the circumstances to remand this matter for the ALJ’s determination as to whether there is a statutory condition for terminating TTD benefits, accordingly.
III.
The claimant also challenges the ALJ’s finding that the claimant received extensive medical treatment for her injuries caused by her auto accident that were not related to her industrial accident. Order at 2-3, ¶ 7. The claimant asserts that this finding may be applied to deny her future benefits. Because the effect of the finding in future litigation is both hypothetical and speculative, we need not address the argument. There has been no award or denial of benefits in the hypothetical litigation, and any order which we might issue would be merely advisory See Board of Directors v. National Union Fire Insurance Company, 105 P.3d 653 (Colo. 2005) (courts should refuse to consider uncertain or contingent future matters that suppose speculative injury that may never occur).
IT IS THEREFORE ORDERED that the ALJ’s order issued April 15, 2008, is set aside to the extent that it denies the claimant medical benefits and terminates the
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award of TTD benefits. This matter is remanded to the ALJ for additional findings consistent with the opinions expressed in this Order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
VERONICA CARAVEO, DENVER, CO, (Claimant).
DAVID J. JOSEPH CO, C/O: F/K/A WESTERN METALS RECYCLING, ERIE, CO, (Employer).
LIBERTY MUTUAL INS. CO, Attn: MARIANA COZART, IRVING, TX, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
CLISHAM, SATRIANA BISCAN, LLC, Attn: PATRICIA CLISHAM, ESQ., DENVER, CO, (For Respondents).
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