W.C. No. 4-185-255Industrial Claim Appeals Office.
June 23, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wells (ALJ), which awarded the claimant medical benefits. We affirm.
The claimant sustained a compensable back injury in August 1993. In February 1995, the claimant’s treating physician, Dr. Kurica, performed an “anterior/posterior fusion” and inserted metal rods in the claimant’s back. Although the surgery initially reduced the claimant’s pain, in January 1996 she experienced the “onset of symptoms different from what she had previously experienced.”
In a letter dated June 11, 1996, Dr. Kurica recommended surgical removal of the “hardware” in the claimant’s back. Although Dr. Kurica stated that he did not generally recommend removal of hardware, he believed that removal in this case presented “a very reasonable potential solution to” the claimant’s pain. Dr. Kurica also stated the following:
“In patients that have specific pain that is different from the pain that they had prior to the operation, there is a high incidence of bursa formation, irritation and metal corrosion that is often seen as a reaction to the metal from the body.”
The respondents denied authorization for the proposed surgery on the grounds that they desired to submit the matter for a “reasonable and necessary review by Medical Director.” Thereafter, on June 18, 1996, the claimant applied for a hearing on the issue of “reasonable and necessary” medical benefits. On July 5, 1996, a notice was issued stating that a hearing would be held on October 30, 1996.
At the commencement of the October 30 hearing, the respondents produced a medical report from Dr. Yee dated October 29, 1996. In this report Dr. Yee opined that removal of the hardware “is unlikely to improve the patient’s current symptoms of bilateral buttock pain.” He further stated that the claimant’s fusion might not be solid and “removal of the hardware is not recommended at this time.”
Prior to taking evidence, the respondents moved to strike the hearing on two separate grounds. Citing § 8-42-107(8)(b)(II), C.R.S. (1996 Cum. Supp.), the respondents stated that, on the morning of the October 30 hearing, they had submitted a request for a Division-sponsored independent medical examination (IME) on the issue of maximum medical improvement (MMI). The respondents argued that the issue of MMI is inherently tied to the question of whether the claimant needs the surgical treatment recommended by Dr. Kurica. Therefore, the respondents asserted that the ALJ lacked jurisdiction to consider the claimant’s entitlement to the disputed medical treatment until the finding of the IME physician was filed with the Division pursuant to § 8-42-107(8)(b)(III), C.R.S. (1996 Cum. Supp.).
Alternatively, the respondents stated that they intended to submit a request for medical utilization review (MUR) in accordance with § 8-43-501, C.R.S. (1996 Cum. Supp.). Thus, the respondents contended that § 8-43-501(2)(e), C.R.S. (1996 Cum. Supp.), precluded the ALJ from proceeding with the hearing until the MUR was complete.
However, the ALJ denied the respondents’ motion to strike the hearing. The ALJ stated that he was unaware of any authority precluding him from ruling on whether medical treatment is “reasonable and necessary,” even if the IME procedure had been invoked. The ALJ also indicated that he retained jurisdiction to consider the issue of medical treatment since it arrived before him prior to completion of the IME procedure.
The ALJ also rejected the argument that the proposed MUR precluded him from proceeding with the hearing. In support of this ruling, the ALJ stated that the MUR procedure concerns review of treatment already provided, and does not affect and ALJ’s authority to determine whether future medical treatment is reasonable and necessary. Moreover, the ALJ stated that §8-43-501(2)(e) was inapplicable because the respondents had not yet “requested” an MUR within the meaning of the statute.
In his written order, the ALJ found that the claimant proved, by a preponderance of the evidence, “that removal of the hardware of [sic] her back is reasonably necessary to cure and relieve the Claimant of the effects of her work injury, and enable er [sic] to reach maximum medical improvement.” In support, the ALJ relied on the evidence that the claimant’s January 1996 pain was different than that which she experienced before, and Dr. Kurica’s opinion that the change in the claimant’s pain was indicative of a need to remove the hardware. The ALJ also pointed out that Dr. Yee did not appear entirely opposed to removing the hardware, but seemed “to be concerned with timing of this procedure.” Under these circumstances, the ALJ ordered the respondents to “pay for the reasonable cost of the treatment recommended by Dr. Kurica.”
I.
The respondents first contend that the ALJ erred in denying their motion to strike the hearing pending completion of the MUR. The respondents argue that § 8-43-501(2)(e) is evidence of a legislative intent that MUR proceedings “take precedence” over hearings before ALJs when the issue involves the reasonableness and necessity of medical treatment. The respondents also point out that § 8-43-501(2)(f), C.R.S. (1996 Cum. Supp.), provides for a hearing following an MUR proceeding. We are not persuaded.
Section 8-43-501(2)(e) provides as follows:
“When an insurer, self-insured employer, or claimant requests utilization review, no other party shall request a hearing pursuant to § 8-43-207
until the utilization review proceedings have become final, if such hearing request concerns issues about a change of physician or whether treatment is medically necessary and appropriate.” (Emphasis added).
In interpreting this statute, the primary objective is to effect the legislative intent. Because the legislative intent is most clearly discerned from the statutory language itself, we are obliged to give the words in the statute their plain and ordinary meanings. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). However, to the extent there is any ambiguity, it is proper to employ other rules of statutory construction. We may consider the problem which the statute was designed to remedy. Further, we should construe the entire statutory scheme in a manner that gives consistent, harmonious and sensible effect to all its parts Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
The plain language of the statute provides that once a party “requests” MUR, other parties are prohibited from requesting a hearing on issues involving a change of physician or the necessity for and propriety of medical treatment. The statute does not prohibit a party from filing a “request” for a hearing prior to a request for MUR, nor does it prohibit an ALJ from proceeding with the hearing if the application was filed prior to the request for MUR. Thus, the plain and ordinary language of the statute does not support the respondents’ argument.
Moreover, as the ALJ recognized, a “request” for MUR must be made on the form prescribed by the Director of the Division of Workers’ Compensation, and submitted with the necessary fee. Section 8-43-501(2)(a), C.R.S. (1996 Cum. Supp.). It follows that the respondents did not “request” an MUR prior to the initiation of the October 30 hearing. Similarly, the ALJ was correct in stating that “requests” for MUR are not made to ALJs, but must be made to the Division. See also, Rule of Procedure XV (B), 7 Code Colo. Reg. 1101-3 at 63.
Neither are we persuaded by the respondents’ assertion that §8-43-501(2)(e) requires that MUR always take precedence over an ALJ’s statutory authority to consider the necessity for and reasonableness of medical treatment. Section 8-43-501(2)(e) was enacted in 1994. 1994 Colo. Sess. Laws, ch. 346 at 2818-2819. Prior to that time, jurisdiction to consider the propriety of medical treatment was evenly divided between ALJs and the MUR process. Section 8-43-201, C.R.S. (1996 Cum. Supp.). Thus, prior to the adoption of § 8-43-501(2)(e), ALJs and MUR committees could review the same issue at the same time, and problems associated with forum shopping and dual jurisdiction occurred. In our view, § 8-43-501(2)(e) represents the General Assembly’s attempt to solve these problems by prohibiting ALJs from taking jurisdiction of the specified medical issues once the MUR process has been initiated by the filing of a request for MUR. However, the statute does not explicitly or implicitly require that MUR proceedings must always take precedence over an ALJ’s jurisdiction.
Here, the respondents never filed a “request” for MUR in accordance with the statute. Consequently, the ALJ did not err in considering the reasonableness and necessity for the treatment which the claimant was requesting.
II.
The respondents next contend that the ALJ erred in failing to strike the hearing because they timely requested a Division-sponsored IME on the issue of MMI. The respondents argue that once the IME request was made, § 8-42-107(8)(b)(III) prohibited the ALJ from considering the need for surgery until such time as the IME physician’s “finding” concerning MMI was filed with the Division. The respondents assert that the medical issue involving the “reasonableness and necessity” of surgery “necessarily included the issue of MMI.” We disagree.
Prior to the 1996 enactment of the provisions contained in §8-42-107(8)(b)(II)(A)-(D), respondents had no opportunity, outside of MUR, to dispute the opinion of an authorized treating physician who declined to place the claimant at MMI. See Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). However, the new statutory procedures subject the opinion of the authorized treating physician to the IME procedure beginning eighteen months after the date of the injury. When the IME procedure is invoked the ALJ is prohibited from making an independent judgment concerning whether or not the claimant is at MMI until the IME procedure has been completed. Section 8-42-107(8)(b)(III). The purpose of this statutory scheme is to reduce litigation concerning MMI. See AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
However, we reject the respondents’ argument that determinations concerning the “reasonableness and necessity” for medical treatment are synonymous with determinations of MMI. It is true that, under § 8-40-201(11.5), C.R.S. (1996 Cum. Supp.), the question of whether a claimant needs additional treatment “to improve” her condition is one of the critical factors underlying a determination of MMI. However, it is equally true that “the requirement for future medical maintenance” treatment does not preclude a finding of MMI.
In fact, under § 8-42-101(1)(a), C.R.S. (1996 Cum. Supp.), respondents may be required to provide reasonable and necessary medical treatment even though the claimant has reached MMI and the claim is otherwise closed. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). As stated in Grover, § 8-42-101(1)(a) makes “medical benefits available to a disabled worker without regard to any time limitation measured from the date of the injury as long as further treatment is reasonably necessary to relieve the worker from the effects of the industrial injury or occupational disease.” Id. at 711.
It follows that, regardless of whether additional medical treatment will “improve” a claimant’s condition, or simply “relieve” or prevent deterioration of an otherwise static condition, respondents must provide the treatment if it is reasonably necessary. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Thus, to the extent the evidence supports a finding that additional medical treatment is reasonably necessary to relieve the effects of an injury, such a finding is not inconsistent with a finding of MMI.
Here, the ALJ found that it is probable that removal of the hardware will both cure and relieve the claimant from the effects of the injury by reducing her pain. Although the ALJ may have exceeded his jurisdiction in determining that the proposed surgical treatment will “cure” the injury by enabling the claimant to obtain MMI, he did not exceed his jurisdiction in determining that the surgery will “relieve” the claimant from the effects of her injury. Further, the ALJ’s finding that the surgery will relieve the claimant from the effects of the injury is itself sufficient to remove the case from the jurisdictional limitation of § 8-42-107(8)(b)(III), regardless of the separate question of whether the treatment will tend to improve or cure the claimant’s condition. Cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (§ 8-42-107(8)(b) precluded ALJ from ordering a change of physician for purposes of “curing” the claimant’s condition and assisting her to reach MMI, but did not preclude the ALJ from ordering a change of physician for purposes of providin Grover-style medical treatment).
We do not believe our decision in Flowers v. Mobile Pre-Mix, Inc., W.C. No. 3-963-588, (July 13, 1992), is authority to the contrary. First, that case was decided prior to enactment of the provisions currently codified at § 8-42-107(8)(b)(II). In any event, the case merely holds that a request for additional medical treatment was sufficient to apprise the respondents that MMI was an issue, not that a request for additional medical treatment must be equated to an assertion that the claimant is not at MMI.
III.
The respondents next contend that the ALJ erred in failing to resolve conflicts in the evidence. Specifically, they argue that the ALJ failed to determine whether the claimant’s spinal fusion was solid. The respondents assert that resolution of this question was a prerequisite to deciding whether removal of the hardware was reasonable and necessary. We reject this argument.
An ALJ is not held to a standard of absolute clarity when expressing his findings of fact and conclusions of law. Rather, it is sufficient that the ALJ enter findings of fact and conclusions of law concerning that evidence which he considers to be determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ credited Dr. Kurica’s opinions. Dr. Kurica’s June 11, 1996 letter clearly expresses the opinion that, under the circumstances, it is appropriate to remove the hardware in an attempt to relieve the claimant’s pain. Dr. Kurica does not condition this opinion on whether or not the claimant’s fusion is solid.
It is true that Dr. Yee expressed the opinion that the claimant’s fusion might not be solid, and that this fact would militate against removing the hardware. However, the ALJ implicitly resolved this conflict with Dr. Kurica by crediting Dr. Kurica’s opinion. We are in no position to substitute our judgment for that of the ALJ concerning the weight of the expert medical testimony. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
IV.
The respondents next contend that the ALJ’s order is not supported by the evidence or the law. The respondents assert that the claimant failed to present any evidence to counter Dr. Yee’s opinion, and that Dr. Kurica’s “generalized experience” is insufficient to support his opinion. We reject these arguments.
The question of whether medical treatment is reasonable and necessary to relieve the effects of the injury is one of fact for resolution by the ALJ. See Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Therefore, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying the substantial evidence test, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
As we have already held, Dr. Kurica’s report implicitly contradicts Dr. Yee’s opinion that removal of the hardware is not advisable. Further, the question of whether Dr. Kurica’s “generalized experience” as a physician is of sufficient weight to support his conclusion that removal of the hardware is appropriate was a question of fact for the ALJ. We decline the respondents’ invitation to reweigh the expert medical evidence and reach a different conclusion. Rockwell International v. Turnbull, supra.
V.
The respondents’ final contention is that the ALJ’s order is indefinite because it states that they are liable for the “reasonable cost of the treatment recommended by Dr. Kurica.” We disagree.
At the commencement of the hearing, the claimant’s counsel stated that the issue for consideration was whether the respondents are liable for “removal of the hardware placed in back of the claimant’s back.” In the order, the ALJ stated that the evidence supported the conclusion that “removal of the hardware of her back is reasonably necessary.” Thus, it is clear that the ALJ ordered respondents to pay for the surgery proposed by Dr. Kurica, and the order is not fatally vague.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 7, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1995 Cum. Supp.).
Copies of this decision were mailed June 23, 1997 to the following parties:
Joyce Deyle, Box 299, Syracuse, KS 67878
Prowers Medical Center, 401 Kendall Dr., Lamar, CO 81052
Colorado Hospital Trust Association, Attn: Sharon Thompson, 2140 Holly St., Denver, CO 80222
James A. May, Esq., 105 E. Moreno, Colorado Springs, CO 80903 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: _______________________________