W.C. Nos. 4-248-644, 4-248-645Industrial Claim Appeals Office.
May 15, 1996
FINAL ORDER
The City of Durango and the Colorado Intergovernmental Risk Sharing Agency (CIRSA respondents) seek review of a final order of Administrative Law Judge Martinez (ALJ) which ordered them to pay medical benefits for a 1991 industrial injury. We affirm.
The ALJ found that in early 1995 the claimant was diagnosed with a herniated disc and that he needs surgery for this condition. The primary issues were whether the herniated disc is causally connected to a 1991 industrial back injury, and if so, whether the claim for medical treatment is barred by the statute of limitations.
Relying on the claimant’s testimony, and that of Dr. Harrison, the ALJ found that the herniation and need for surgery are connected to the 1991 injury. Further, the ALJ determined that the claim is not barred by the statute of limitations because the claimant did not recognize the nature, seriousness and probable compensable nature of his claim until he was diagnosed with the herniated disc in 1995.
In light of these determinations, the ALJ concluded that the claimant is entitled to compensation for medical treatment provided by Dr. Harrison, Dr. Welch and Dr. McLean. This treatment includes the “recommended surgery by Dr. McLean, as prescribed and recommended by Dr. Harrison.”
I.
On review, the CIRSA respondents first contend that the ALJ erred in finding a causal relationship between the 1991 injury and the 1995 disc herniation. The respondents assert that the record is devoid of any evidence of a causal relationship, and specifically attack the testimony of Dr. Harrison as unsupportive of the ALJ’s order. We reject these arguments.
The question of whether the claimant proved a causal relationship between the industrial injury and the disc herniation is one of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). In this regard, we note that liability is not restricted to the immediate results of the injury, but also encompasses those results “flowing proximately and naturally” therefrom. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
Because the issue is factual in nature, we must uphold the ALJ finding of causation if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In this regard, we note that it was for the ALJ to assess the weight and credibility of the medical testimony Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). To the extent any medical testimony contained internal inconsistencies, the ALJ was free to credit all, part or none of that testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968).
The CIRSA respondents’ arguments notwithstanding, the record contains substantial evidence to support the ALJ’s findings of causation. Dr. Harrison testified that, in her opinion, the 1991 injury weakened the “the annulus at the time to put [the claimant] at risk of herniation.” (Tr. p. 19). She further stated that the “more symptomatic the injury, the more likely it contributed to the ongoing degeneration.” (Tr. p. 35). This evidence, taken with the claimant’s testimony that his pain was worse after the 1991 injury than the 1989 injury, supports the ALJ’s finding of causation.
It is true that some evidence in the record, including portions of the testimony of Dr. Harrison, would support a contrary finding and conclusion. However, we are not free to substitute our judgment for that of the ALJ concerning the weight of the evidence or the inferences to be drawn therefrom. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The CIRSA respondents’ next argument is that the ALJ erred in finding that the claim was not barred by the two year statute of limitations found at § 8-43-103(2), C.R.S. (1995 Cum. Supp.). The respondents point out that, by 1992, the claimant had missed more than three days of work as a result of back pain caused by the 1991 injury. Therefore, the respondents reason that the claimant must have recognized the compensable nature of his injury by 1992. We reject this argument.
The statute of limitations provides that the claimant must file a claim within “two years after the injury.” An “injury,” as used in §8-43-103(2), exists when the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of the injury. City of Boulder v. Payne, 162 Colo. 345, 416 P.2d 194
(1967). The requirements that the claimant recognize the nature, seriousness, and probable compensable character of the injury are distinct, though interrelated. The “nature of the injury” reflects the necessity that the claimant appreciate the general, though not necessarily the precise, diagnosis. The “seriousness” of the injury refers to the likely consequences of the injury. Finally, the “probable compensable character” of the injury concerns the claimant’s understanding of the relationship between the injury and the employment See, 2B Larson, Workmens’ Compensation Law, § 78.41(d)-(f).
We agree with the claimant that Colorado courts have recognized the distinction between the three requirements and have required each element to be present for the statute of limitations to bar a claim. And, as the ALJ held, Intermountain Rubber Industries v. Valdez, 688 P.2d 1133
(Colo.App. 1984), stands for the proposition that the mere awareness of back pain associated with an industrial injury will not trigger the statute of limitations if the claimant does not realize that the injury is “serious” enough to subject him to the possibility of disc herniation at a later time. See also Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971); Romero v. Industrial Commission, 632 P.2d 1052
(Colo.App. 1981).
The CIRSA respondents’ attempt to distinguish Valdez on the ground that it is a “reopening” case is mistaken. To the contrary, the court applied the predecessor of the current statute of limitations. It is true that the claimant filed a “petition to reopen,” but the court held that the petition was, in fact, the “notice of claim” for purposes of the statute of limitations.
Here, there is substantial evidence to support the determination that the claimant did not recognize the seriousness of his condition until 1995. It is true that prior to 1995 he had intermittent back pain, and occasionally missed work because of sleeplessness caused by the back pain. However, these facts must be weighed against evidence that the claimant continued to perform his employment for nearly four years, and did not experience radicular symptoms until February 1995. Thus, the evidence and law support the ALJ’s order.
We recognize that the CIRSA respondents place great reliance on the case of Valdez v. United Parcel Services, 728 P.2d 340 (Colo.App. 1986), for the proposition that the claimant became disabled when he missed more than three days of employment. However, the test is not solely whether the claim became “compensable” at the time the claimant missed more than three days. As we have previously held, this type of evidence does not require the ALJ to find that the claimant recognized the “seriousness” of the injury in 1992. Cf. Enright v. Super Value Stores, W.C. No. 3-918-836, June 30, 1995.
III.
The CIRSA respondents next contend that the ALJ erred in finding that the surgery, recommended by Dr. McLean, was reasonable and necessary. In support of this argument, the respondents state the claimant made no showing that orthopedic surgeons were unavailable in Durango, or that Dr. McLean possessed any special skills or qualifications not reasonably available to the claimant in the Durango area. We reject this argument.
The question of whether services are reasonable and necessary is generally one of fact for resolution by the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). When alternative treatments are available, the ALJ may examine the evidence and determine whether one alternative is so expensive as to render it “unreasonable” under the statute. See City County of Denver v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984).
Here, it is apparent that the claimant’s initial treating physician, Dr. Harrison, believed that surgery was a reasonable treatment for the claimant’s condition. In fact, Dr. Harrison indicated that the claimant would probably already have had the surgery but for the litigation surrounding the claim. (Tr. p. 17). Further, there was no evidence whatsoever that performance of the surgery by Dr. McLean in Phoenix would be substantially more burdensome or expensive than if performed in Durango. Therefore, we cannot say the ALJ erred, as a matter of law, in finding that performance of the surgery by Dr. McLean was reasonable and necessary.
IV.
The respondents’ final contention is that Dr. Harrison’s referral to Dr. McLean was not in the normal progression of authorized treatment. To the contrary, the respondents argue that the referral was the result of the claimant’s request, and that the referral was limited to a “second opinion.” We reject these arguments.
Treatment which is rendered as the result of a referral in the “normal progression of authorized treatment” is compensable. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). We have long held that the questions of whether a referral was made in the “normal progression” of treatment, and the scope of the referral, are questions of fact for resolution by the ALJ. Eg., Tomlinson v. Rainbo Bread, W.C. No. 3-788-270, January 21, 1988.
The mere fact that the claimant requests the authorized treating physician to make a referral does not mean that the referral is outside the scope of the “normal progression” of treatment. If the evidence shows that the treating physician has exercised independent judgment concerning the medical advisability of a referral, then the referral may be in the normal progression of treatment. Here, Dr. Harrison’s April 17, 1995 report states that the claimant “would like to obtain a 2nd opinion through [Dr. McLean] with consideration of having him do his surgery.” Dr. Harrison also indicated that she “would anticipate proceeding with 2nd opinion on neurosurgical consultation.”
This constitutes substantial evidence that Dr. Harrison made an independent assessment of the advisability of referring the claimant to Dr. McLean. Moreover, Dr. Harrison testified that she “referred” the claimant to Dr. McLean. (Tr. p. 17). Under these circumstances, the evidence supports the ALJ finding of a referral in the normal progression of treatment.
Moreover, the evidence supports the inference that the referral was not limited to a mere examination by the Dr. McLean. To the contrary, Dr. Harrison testified that the claimant wanted to undergo the surgery by Dr. McLean, and that it probably would have been done but for the litigation. Thus, the ALJ could infer that Dr. Harrison was, in fact, agreeing to permit Dr. McLean to perform the surgery.
IT IS THEREFORE ORDERED that the ALJ’s order, dated December 4, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1990 Cum.Supp.).
Copies of this decision were mailed May 15, 1996 to the following parties:
Randy L. Dunagan, 2165 CR 204, Durango, CO 81301
Jean Walter, Personnel Officer, City of Durango, 949 E. Second Ave., Durango, CO 81301
Judy Montoya, CIRSA, 950 S. Cherry St., Ste. 800, Denver, CO 80222
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Bethiah Beale Crane, Esq., 575 E. College Dr., Durango, CO 81301 (For the Claimant)
David P. Smith, Esq., City Attorney, 111 West 9th St., Durango, CO 81301
Karen Gail Treece, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For CIRSA Respondents)
Scot J. Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For CCIA Respondents)
By: _________________________