W.C. No. 4-459-341Industrial Claim Appeals Office.
November 19, 2002
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Harr (ALJ) which denied medical benefits in the form of additional physical therapy. We affirm.
In May 1998, the claimant reported bilateral shoulder pain from the computer services required of her employment. The claimant was treated by Dr. McInerney who diagnosed a trapezius strain. On January 29, 1999, Dr. McInerney placed the claimant at maximum medical improvement (MMI) with no permanent impairment.
The ALJ’s pertinent findings may be summarized as follows. The claimant sustained a compensable occupational disease from the aggravation of pre-existing neck and shoulder conditions. On March 10, 1999 Dr. McInerney recommended 4 additional sessions of deep tissue massage to maintain the claimant at MMI. On April 7 Dr. McInerney recommended 2 more massage sessions and 6 physical therapy sessions. Dr. McInerney believed the claimant would be finished with all appropriate physical therapy by April 28, 1999. All but one of the recommended physical therapy sessions was completed by April 28. In May 1999 the claimant moved to Iowa.
In October 1999, the claimant requested a referral for physical therapy in Iowa. The respondents denied liability for further physical therapy.
The claimant did not request any further treatment until January 2000 when she sought chiropractic treatment for right hip and low back pain following a fall through the ceiling of a rental unit. In December 2000 and March 2001 the claimant was involved in motor vehicle accidents. In March 2001 the claimant underwent an independent orthopedic evaluation for shoulder pain by Dr. Berg. Dr. Berg, recommended the claimant continue home exercises to manage her pain.
In finding the claimant failed to prove a need for additional physical therapy, the ALJ credited Dr. Berg’s opinions. The ALJ also found the claimant refused a follow-up evaluation with Dr. McInerney in February 2001. The claimant timely appealed.
On review, the claimant contends the complete evidence was not presented to the ALJ because she did not receive adequate representation by her former counsel. Therefore, the claimant requests a new hearing, with a new attorney of her “choice” to present additional evidence in support of her claim for medical benefits. The claimant also states she wants to seek damages from the “relevant parties” involved in the claim for negligence, and falsification of records. We conclude the claimant has failed to present grounds which afford us a basis to interfere with the ALJ’s order.
The respondents are obligated to provide treatment which is “reasonably needed” to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2002. The obligation to provide medical benefits terminates when the claimant reaches MMI. However, Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) provides that the claimant may receive ongoing medical benefits to maintain MMI or prevent a deterioration of condition.
The determination of whether a particular treatment is a reasonable and necessary Grover-type medical benefit is a question of fact for the ALJ. We may not disturb the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513
(Colo.App. 1984). Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Our authority to review the ALJ’s order is defined in § 8-43-301(8), C.R.S. 2002. That statute precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
Section 8-43-301(8) does not authorize us authority to consider the “adequacy” of representation provided by a party’s attorney. Accordingly, insofar as the claimant argues that her ability to have certain evidence introduced was the result of the “ineffective assistance” of counsel, we cannot alter the ALJ’s order on this basis.
We also note that parties are expected to present all of their evidence at the appointed hearing before the ALJ, and our review is limited to the record before the ALJ. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935); City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Therefore, we have not considered the additional factual assertions made by the claimant on appeal. Neither have we considered the documents provided with the claimant’s appellate brief which were not part of the record before the ALJ.
Furthermore, it is unclear whether the claimant seeks a form of “damages” available under the Workers’ Compensation Act. However, the only issue before the ALJ for adjudication was medical benefits. (See
Tr. p. 3). Consequently, we do not consider the claimant’s argument that she is entitled to a hearing on her claim for “damages.” See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (an issue may not be raised for the first time on appeal).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). Although the claimant contends some of the ALJ’s findings are not supported by the record, we perceive no reversible error.
The claimant did not object when the respondents submitted the 1998 Rocky Flats Occupational Health Records as the clinic notes of Dr. McInerney. (See Tr. p. 4). Under these circumstances, the ALJ reasonably inferred that the December 16, 1998 clinic note referred to an examination by Dr. McInerney, not Dr. Frank. (See Finding of Fact 3).
Similarly, the Physician’s Supplemental Report dated April 7, 1999 is signed by both a nurse practitioner and Dr. McInerney. Consequently, the record supports the ALJ’s Finding of Fact 5 that the claimant was examined by Dr. McInerney on April 7, 1999.
In contrast, we agree with the claimant that Finding of Fact 1 is erroneous insofar as the ALJ found the claimant requested an ergonomic evaluation of her workstation in August 1998. The record shows the ergonomic evaluation was recommended by Dr. McInerney. However, there is no indication the ALJ relied on the erroneous finding for any purpose other than his determination that the claimant suffered a compensable injury. Consequently, the error was harmless and will be disregarded. Section 8-43-310 C.R.S. 2002: A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
The claimant also challenges Finding of Fact 7 which states:
“Claimant was late for her April 28th appointment with Kim Gans [for the physical therapy prescribed by Dr. McInerney] and couldn’t wait for a later time. Kim Gans rescheduled Claimant for April 29th. Claimant was again late for her appointment on April 29th, leaving Kim Gans only 30 minutes for her physical therapy. Claimant planned to return to town in June of 1999. Claimant told Kim Gans she would rather return to him for a full hour appointment in June.”
The claimant denies being late for the appointment on April 28 but the ALJ’s finding is supported by the Claimant’s Medical Exhibit 3, which is a Physical Therapy Note dated April 28, 1999. However, there is no evidence the claimant was late for the appointment on April 29. Rather, the April 29 Physical Therapy Note indicates the doctor’s schedule was running late. Nevertheless, the record supports the ALJ’s finding that the claimant returned to Colorado for 2 weeks in June but did not reschedule the appointment with Kim Gans and did not explain why she did not reschedule the appointment.
Based upon his findings that the claimant did not reschedule the April 29 appointment in June 1999 as planned, the claimant attended all but one physical therapy session before her move to Iowa, Dr. Berg did not recommend any further physical therapy and the claimant did not accept the respondents’ offer for a reevaluation by Dr. McInerney, the ALJ was not persuaded the claimant needed any further physical therapy to relieve the effects of the industrial injury. Given the extensive reasons cited by the ALJ in support of his finding that further physical therapy was not reasonably necessary to treat the effects of the industrial injury, we fail to see how the ALJ’s determination would be any different had the ALJ realized the claimant was not late for the April 29 appointment. Rather, the critical determination was the ALJ’s finding that the claimant never rescheduled the appointment. Consequently, we conclude the error was harmless.
The claimant further challenges to Findings of Fact 6, 16 and 18 have been considered, and do not alter our conclusions. The ALJ’s findings are supported by substantial albeit conflicting evidence and plausible inferences drawn from the record. (See Dr. McInerney April 28, 1999; Tr. pp. 23, 29). Consequently, they are binding on review. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Moreover, the ALJ’s factual determinations support the conclusion the claimant failed to prove the requisite causal connection between the industrial injury and the need for additional physical therapy.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 16, 2002, 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 _________November 19, 2002 _______________to the following parties:
Linda Creel, P. O. Box 271, San Francisco, CA 94104
Source One Management, 1225 17th St., #1500, Denver, CO 80202
Stacy Strickland, G. E. Young Company, 4251 Kipling St., #510, Wheat Ridge, CO 80033
Albert Jerman, Rocky Flats Environmental Technology Site, 10808 Highway 93, Unit B, Building No. 850, Golden, CO 80403-8200
Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Hurtado