W.C. No. 4-391-701Industrial Claim Appeals Office.
March 11, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded surgery for scar revision as a form of medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The respondent contends the award is contrary to law and unsupported by the evidence. We affirm.
The claimant sustained a compensable back injury which required an anterior entry spinal fusion. As a result, the claimant has a large scar on her abdomen. The treating physician placed the claimant at maximum medical improvement (MMI) in April 2001, and assessed a 28 percent whole person impairment, although none of the rating was based on depression. The treating physician did recommend anti-depressant medication “on a maintenance basis.” The claimant received a $2,000 award for disfigurement.
After reaching MMI the claimant became increasingly depressed about the appearance of the scar. In June 2001 the claimant’s treating psychiatrist noted the claimant was “depressed, scared and overwhelmed,” and trying to get approval for a revision of the scar. In October 2001, the treating physician opined it would be reasonable and necessary for the claimant to undergo a plastic surgery consultation regarding scar revision. The claimant underwent a plastic surgery consultation, and the surgeon noted the claimant’s concerns were “cosmetic in nature and there are no functional implications.”
The claimant testified she is distressed by the scar and it has caused marital problems. She further testified that she has increased her consumption of anti-depressant medication because of sadness over her appearance.
The ALJ credited the claimant’s testimony and the medical reports of the psychiatrist and treating physician to conclude the claimant proved that her mental condition is likely to deteriorate to the point she will be required to seek reopening of her claim because of depression. Consequently, the ALJ concluded the scar revision is a compensabl Grover medical benefit which is reasonable and necessary to prevent deterioration of the claimant’s mental condition.
On review, the respondents contend the ALJ was precluded from awarding the scar revision surgery absent a finding the claimant was no longer at MMI. In any event, the respondents contend evidence does not support the finding that, absent the surgery, the claimant’s condition is likely to deteriorate to the point that reopening will become necessary. We disagree with these arguments.
Even if a claimant remains at MMI, the claimant may be entitled t Grover-style medical benefits which are reasonably necessary to prevent deterioration of the claimant’s condition or relieve the effects of the industrial injury. This rule recognizes the principle that the need for medical treatment may not end upon the entry of an award of permanent disability benefits, and the claimant may need periodic care to prevent deterioration of an injury-related condition. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Thus, the mere fact the treating physician opined the claimant remained at MMI did not disqualify her from receiving an award of Grover-style medical benefits.
The question of whether a proposed medical treatment is reasonable and necessary to prevent deterioration of the claimant’s condition is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, supra. Because the issue is one of fact, we must defer to the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, the ALJ plausibly inferred that surgical revision of the claimant’s scar is a reasonable and necessary procedure designed to prevent further deterioration of the claimant’s emotional condition. The ALJ credited the claimant’s own testimony that her mental state was deteriorating because of her feelings about the scar. The claimant’s testimony was corroborated by the reports of the treating physician and psychiatrist, which were specifically cited by the ALJ. Because the ALJ’s findings are supported by substantial evidence and plausible inferences drawn therefrom, there is no basis to interfere with the order.
The respondents’ assertion that the ALJ’s order is “speculative” is without merit. Because awards of Grover-style medical benefits may be based on the need to prevent deterioration, they often involve predictions about the course of the claimant’s condition if no treatment is awarded. The issue is whether the claimant can show it is more probable than not that the condition will deteriorate if no treatment is provided. Here, there is substantial evidence to support the ALJ’s inference.
To the extent the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 29, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate this Order iscommenced 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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 11, 2003 to the following parties:
Collette M. Elliott, 11100 Haskel Creek Rd., Larkspur, CO 80118
United Airlines, 8900 Pena Blvd., Denver, CO 80249
Alice Kasey Troutman, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondents)
By: A. Hurtado