W.C. No. 4-328-776Industrial Claim Appeals Office.
December 12, 2003
FINAL ORDER
The claimant seeks review of the order of Administrative Law Judge Martinez (ALJ) entered on remand which denied medical benefits after maximum medical improvement (MMI). We affirm.
In February 1991 the claimant suffered a compensable left knee injury while working as a groundsman/heavy equipment operator and commercial truck driver. Dr. Lewis was the designated provider. The claimant did not miss time from work and did not receive any medical treatment for the injury between 1991 and 1994. In 1994, the claimant returned to Dr. Lewis with pain complaints but declined surgical intervention until March 1996 when he underwent an arthroscopy. During 1996 and 1997 Dr. Lewis recommended the claimant undergo additional surgery known as a high tibial osteotomy. Also in 1997, Dr. Clark told the claimant he could either “live with the problem,” use anti-inflammatory medicines and Tylenol, lose weight, or undergo a “traditional high tibial osteotomy.”
In March 1998, the claimant elected to undergo Hyalgan injections with Dr. Sterett. When the claimant was reexamined by Dr. Lewis on July 17, 1998, he told Dr. Lewis he wanted to defer further surgery until it could be determined whether the Hyalgan injections had successfully reduced his pain symptoms. Because the claimant declined to proceed with surgery, Dr. Lewis placed the claimant at MMI and released the claimant from treatment.
In a report dated January 30, 2001, Dr. Sterett recommended several alternative treatments including a high tibial osteotomy, knee replacement, and repeat injections of Hyaluronic acid. Thereafter, the claimant requested an award of medical benefits after MMI consistent with Dr. Sterett’s recommendations.
In a previous order the ALJ determined the claimant failed to prove an entitlement to medical benefits after MMI as provided under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant appealed, and on review we concluded the ALJ misconstrued the medical reports of Dr. Lewis and Dr. Clark in finding the claimant has not been recommended for a medical procedure in the foreseeable future. Consequently, we remanded the matter to the ALJ for additional findings and the entry of a new order concerning the claimant’s entitlement to Grover-type medical benefits.
On remand, the ALJ found the claimant had not seen physician for medical care since reaching MMI and failed to demonstrate any change in his condition since MMI. The ALJ further found the claimant was not subject to a prescription for medication or medical care for his compensable injury, and that he failed to demonstrate a need for treatment. The ALJ also found the claimant continued many of his recreational activities after MMI, and worked as a heavy equipment operator and truck driver earning wages of $60 per hour. Further, the ALJ determined that the references by Dr. Clark and Dr. Lewis for the claimant to undergo a tibial osteotomy were made in the context of “possibilities and contingent upon future medical events.” Therefore, the ALJ determined the claimant failed to prove his entitlement to future medical benefits.
In contesting that order, the claimant relies on the opinions of Dr. Sterett and contends the ALJ’s finding that the claimant is not subject to a “prescription” for future medical treatment is not supported by the record. Further, the claimant argues that Dr. Sterett’s recommendation for further surgery is not based on possibilities or contingencies, but instead is based upon a demonstrated worsening of condition. The claimant also contends the ALJ placed undue weight on evidence the claimant has not obtained additional treatment since 1998. We are not persuaded by these arguments.
A claimant is entitled to medical benefits after MMI which are reasonable and necessary to maintain the claimant’s condition and prevent deterioration. Section 8-42-101(1)(a), C.R.S. 2003; Grover v. Industrial Commission, supra; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
Whether the claimant sustained his burden to prove entitlement t Grover-type medical benefits is a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Stollmeyer v. Industrial Claim Appeals Office, supra. Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995).
In reviewing the ALJ’s decision, we must view the evidence in the light most favorable to the prevailing party, and determine whether it is sufficient to support the ALJ’s pertinent findings. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). We also note the ALJ is only required to make specific findings on evidence he found persuasive, and implicitly rejected evidence that was not cited. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
The ALJ was not persuaded by Dr. Sterett’s opinion that the claimant requires additional surgery for the industrial injury. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. The claimant is dissatisfied with the ALJ’s credibility determinations, but based upon this record we cannot say that, as a matter of law, the ALJ erroneously rejected Dr. Sterett’s opinions. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). The mere existence of contradictory evidence does not afford a basis to interfere with the ALJ’s credibility determinations.
The record contains evidence that at least one year before the claimant attained MMI Dr. Clark recommended the claimant undergo additional non-invasive treatment. Similarly, Dr. Lewis recommended the claimant have a high tibial osteotomy to improve his condition. However, the claimant declined the surgery in favor of the Hyalgan injections. Further, the record supports the ALJ’s finding that the claimant did not obtain additional treatment for the injury between 1998 and 2001 and yet continued to be active. Based upon this evidence the ALJ could reasonably infer there was no existing prescription for the claimant to undergo further treatment to maintain his condition from the industrial injury.
Furthermore, we cannot say the ALJ misconstrued the opinions of Dr. Clark and Dr. Lewis in finding their recommendations for further treatment were made in the context of “possibilities and contingent upon future medical treatment.” Indeed, Dr. Clark opined the claimant could go without any further treatment and “live with” his symptoms. Moreover, the claimant himself declined to undergo the high tibial osteotomy in favor of waiting to determine if the Hyalgan injections had been successful. Consequently, in this context, the high tibial surgery was dependent on the future outcome of the Hyalgan injection treatments.
Finally, we have no authority to reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994). Accordingly, we reject the claimant’s arguments insofar as he requests that we substitute our judgment for that of the ALJ concerning the probative weight of the evidence that the claimant did seek medical treatment for the industrial injury between 1998 and 2001.
Admittedly, the claimant testified that he did not seek additional treatment because he had no health insurance and the respondents had denied liability for Grover-type medical benefits. Although relevant, we cannot say this evidence compelled a finding that the claimant requires
further treatment, especially in view of evidence that the claimant had employment income and passive income sources available to advance the costs of medical treatment if he determined that further treatment was necessary to relieve the effects of the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 17, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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. 2003. 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 December 12, 2003 to the following parties:
Ronald Crawford, P. O. Box 548, Oak Creek, CO 80467
Chevron Corporation d/b/a Pittsburgh and Midway Coal Company, c/o W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222
Insurance Company of North America, c/o Anita Fresquez-Montoya, ACE USA/ESIS, Inc., P. O. Box 2941, Greenwood Village, CO 80150-2941
Jonathan Wilderman, Esq., 4155 E. Jewell Ave., #500, Denver, CO 80222 (For Claimant)
W. Berkeley Mann, Jr., Esq., and Megan R. Goutell, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Pendroy