W.C. No. 4-436-174.Industrial Claim Appeals Office.
July 25, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 31, 2007, that dismissed the claimant’s petition to reopen and denied the claimant’s request for authorization of a spinal stimulator revision. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant suffered an admitted industrial injury to his low back on July 15, 1999. A Division-sponsored independent medical examination (DIME) was conducted in 2003. The DIME physician determined the claimant reached maximum medical improvement (MMI) on February 12, 2001 and that he required no further treatment other than chronic pain management. A May 23, 2003 final admission of liability closed all issues other than medical benefits. The respondents admitted liability for post-MMI medical benefits. In 2005 Dr. Janssen examined the claimant and concluded that a spinal stimulator which had been surgically implanted probably had a loose connection and would need revision. Dr. Beatty opined that the revision of the spinal stimulator was not reasonable because no objective evidence demonstrated that the claimant benefited from a functional stimulator. Dr. Reusswig noted that the claimant had derived little benefits from the stimulator and revision was not justified. Dr. Richman recommended against revising the spinal stimulator and decreasing the claimant’s opiate medications. Dr. Cohen performed a psychological evaluation and noted that the spinal stimulator was never particularly beneficial and opined the clamant was a poor candidate for revision of the stimulator. In 2006 the claimant filed a petition to reopen his claim and testified that the spinal stimulator worked for 10 months and then worked on one side until a few months before
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the December 2006 hearing. The claimant’s testimony conflicted with the medical records and was not credible.
The ALJ determined that the claimant had failed to prove by a preponderance of the evidence that his petition to reopen should be granted due to a change of condition. The overwhelming weight of the record evidence was that the claimant’s condition had not significantly changed since MMI. The ALJ also determined that the claimant had failed to prove by a preponderance of the evidence that surgical revision of his spinal stimulator was reasonably necessary and the risks of surgery to remove the stimulator outweigh any possible benefits from revision. The ALJ denied the petition to reopen and dismissed the claimant’s request for authorization of the spinal stimulator.
On appeal the claimant does not dispute the ALJ’s findings regarding the petition to reopen or the present need for the spinal stimulator. Rather, the claimant contends that the ALJ erred in denying and dismissing the claimant’s request for a spinal stimulator revision without providing that the ruling was “without prejudice.” The claimant’s request for relief is for the ALJ’s order to be amended to reflect that the claimant’s request for a spinal stimulator revision be dismissed “without prejudice.” The claimant seeks to avoid having to litigate issues such as estoppel or “law of the case” in the future. We perceive no error in the ALJ’s order.
The ALJ’s order necessarily operated as an adjudication upon the merits of the claimed benefit requested by the claimant. Presumably the claimant desired the requested medical procedure and so an order denying him the benefit may be properly viewed as prejudicial to his interests Cf. C.R.C.P. 41(2)(b)(1) (involuntary dismissal generally operates as adjudication upon merits, as opposed to being without prejudice) Carlson v. Benton, 701 P.2d 156, 157 (Colo.App. 1985) (same); Brock v. Weidner, 93 P.3d 576, 579 (Colo.App. 2004) (voluntary dismissal with prejudice is complete adjudication on merits).
In addition, § 8-43-201, C.R.S. 2006 provides that ALJs have original jurisdiction to hear and decide all matters arising under articles 40 to 47 of title 8, and refers in its title to “disputes” arising under the Act. We have concluded that this language restricts ALJs and the panel from issuing advisory opinions that do not involve any actual controversy between the litigants. See Plitz v. Quality Mitsubishi, W.C. No. 4-351-844
(December 20, 2001); Tonn v. Ritz Grill, W.C. No. 4-419-470
(March 15, 2007). Here we decline to modify the ALJ’s order contingent upon the occurrence of a set of conditions that might or might not be satisfied in the future. We understand the claimant’s desire to avoid issues such as estoppel or “law of the case.” However, this does not confer upon the ALJ, or us, the jurisdiction to enter an advisory order contingent upon the occurrence of uncertain future events.
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The claimant argues that under in Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) he retains the right to request a particular medical treatment to be provided. The ALJ found that the employer filed a final admission of liability on May 23, 2003, which admitted liability for post-MMI medical benefits. The respondent concedes that the claimant may argue in the future for entitlement to medical treatment as will be reasonably necessary to relieve the injured worker from the effects of the compensable injury. See Grover v. Industrial Commision, supra.
In any event, we are not persuaded that ALJ’s order effectively bars the claimant from pursuing medical benefits in the future. The ALJ recognized that the respondent is “liable for medical treatment reasonably necessary to cure or relieve the claimant from the effects of the injury, including treatment after MMI.” Findings of Fact, Conclusions of Law, and Order at 5 (unpaginated), Conclusions of Law, ¶ 2. Cf. Hanna v. Print Expediters, Inc., 77 P.3d 863, 865-66
(Colo.App. 2003) (issue of future medical benefits after MMI waived when not requested prior to order not reserving issue for future determination). However, this does not mean the issue before the ALJ concerning the claimant’s present entitlement to the requested medical treatment was not properly resolved with prejudice.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 31, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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Willie B. Franklin, Colorado Springs, CO, Steven U. Mullens, Esq./Richard M. Lamphere, Esq., Steven U Mullens PC. Colorado Springs, CO, (For Claimant).
Colorado Springs School District 11, Hank Hahne, Colorado Springs CO, Gregory B. Cairns, Esq., Cairns, Nemechek Magruder, LLC, Denver CO (For Respondents).