W.C. No. 3-920-202Industrial Claim Appeals Office.
November 13, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied certain medical benefits. We affirm.
In 1988 the claimant suffered an admitted low back injury. In March 1994 ALJ Wheelock awarded permanent partial disability benefits based on 6 percent whole person impairment and future medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant’s condition subsequently worsened. On October 14, 1994, ALJ Wheelock reopened the claim and awarded additional temporary disability benefits. Thereafter, the respondents continued to pay for Grover-type medical benefits including chiropractic treatment and prescription medication.
The claimant eventually reached maximum medical improvement (MMI) from the worsened condition. In an order dated March 29, 1999, the ALJ awarded permanent partial disability benefits based on 9 percent whole person impairment. The respondents subsequently contested liability for further chiropractic treatments and narcotic prescriptions.
The claimant applied for a hearing on the issue of medical benefits. At hearing the claimant testified he needed additional chiropractic treatments and prescription narcotics to reduce the pain in his back and legs and perform his job duties at the Harding Nursery. The claimant also requested an MRI.
Dr. Polanco testified that the claimant’s 1988 and 1991 MRIs were normal, and he and opined that it would be unreasonable to expect disk pathology caused by the 1988 injury to appear 11 years later. (Tr. p. 32). Dr. Polanco suggested that any further pathology in the claimant’s low back is attributable to the claimant’s current activities. (Tr. p. 32). Dr. Polanco also opined that further chiropractic treatment was not reasonably necessary to treat the industrial injury because it exceeded the scope of treatment recommended by the Medical Treatment Guidelines contained in Part XVII, Exhibit A, Workers’ Compensation Rules of Procedure, 7 Code Colo. Reg. 1101-3. (Tr. p. 35). Further, Dr. Polanco opposed the claimant’s continued use of prescription narcotics.
Crediting Dr. Polanco’s testimony, the ALJ determined the disputed treatment was not reasonable or necessary to cure or relieve the effects of the industrial injury. In support, the ALJ found the claimant had normal MRI’s in 1998 and 1991, and that a 1994 MRI revealed little change. The ALJ also relied on Dr. Polanco’s testimony that it is inappropriate to treat chronic pain with narcotic medications. Consequently, the ALJ denied the claim for medical benefits in the form of further chiropractic treatments, an MRI and prescription narcotics.
On review the claimant contends the ALJ erroneously denied further chiropractic treatments and prescription medication because ALJ Wheelock previously determined that these treatment modalities are reasonable and necessary to treat the industrial injury. The claimant contends he is entitled to similar future treatment unless the respondents prove his condition has improved or changed. We reject these arguments.
Section 8-42-101(1)(a), C.R.S. 2000, requires the respondents to pay for medical treatment which is reasonably necessary to “cure and relieve” the claimant from the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). The respondents liability for medical benefits terminates at MMI. This is true because MMI is defined as the point in time when the claimant’s condition has stabilized and no further treatment will reasonably improve the claimant’s condition. Section 8-40-201(11.5), C.R.S. 2000; Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995).
However, a claimant is entitled to medical benefits after MMI where there is substantial evidence in the record to support a determination that future medical treatment will be reasonably necessary to maintain the claimant’s condition or prevent further deterioration of his condition. Section 8-42-101(1)(a), C.R.S. 2000; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609
(Colo.App. 1995). Nevertheless, a general award of Grover-type medical benefits does not preclude the respondents from contesting liability for a particular treatment on grounds it is not reasonably necessary to treat the industrial injury. Grover v. Industrial Commission, 759 P.2d at 712; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992).
Although it is undisputed ALJ Wheelock’s March 1994 order awarded Grover-type medical benefits, the parties dispute whether ALJ Wheelock expressly determined that further chiropractic treatment is reasonable and necessary. Further, the March 1994 order is not part of the record transmitted on review, and we are limited to review of the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Consequently, the record does not support the claimant’s contention ALJ Wheelock expressly determined that future chiropractic treatment was reasonable and necessary to treat the industrial injury. Neither does the record reveal whether ALJ Wheelock placed any limitations on the alleged award.
In any case, the respondents are only liable for chiropractic treatment which is reasonable and necessary to cure and relieve the effects of the industrial injury. Accordingly, neither the March 1994 order, nor the respondents’ previous payments for chiropractic treatment, barred the ALJ from determining whether chiropractic treatment continues to be reasonable and necessary. As stated in Grover itself, after an order granting ongoing medical benefits, the employer may contest the need for ongoing treatment. 759 P.2d at 712; see also Snyder v. Industrial Claim Appeals Office, supra; Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986).
Moreover, the respondents were not required to prove a change in the claimant’s condition to avoid liability for future chiropractic treatments. To the contrary, it was the claimant’s burden to prove the disputed treatment is reasonably necessary to maintain MMI. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Nevertheless, there is substantial evidence of a change in the claimant’s condition since the initial award of Grover-type medical benefits. Following the March 1994 award of Grover-type medical benefits, the claimant’s condition deteriorated to the point he was no longer at MMI. As a result, the claimant received additional treatment to improve his condition and return to MMI. The claimant’s condition eventually stabilized, albeit with greater permanent partial disability. Thus, the pertinent issue was whether the claimant required additional chiropractic treatment to maintain MMI from the worsened condition.
The question of whether a particular treatment modality is reasonable and necessary is one of fact for resolution by the ALJ Snyder v. Industrial Claim Appeals Office, supra; Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Because the issue is one of fact we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. The substantial evidence test requires that we 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).
The claimant contends the ALJ applied the wrong legal standard in denying the disputed medical treatment becaus Grover-type medical benefits do not have to “improve” the claimant’s condition. The claimant’s argument is premised on Dr. Polanco’s testimony that further chiropractic treatment was unreasonable because it did not produce “objective functional gains,” as required by the Medical Treatment Guidelines for low back injuries. We disagree.
The ALJ explicitly recognized that the issue was whether the disputed treatment was reasonable and necessary to “maintain maximum medical improvement.” (Finding of Fact 10). The ALJ also acknowledged evidence the respondent- insurer’s adjuster believed continuing prescription medication and chiropractic treatments were necessary to maintain the claimant’s condition. (Finding of Fact 14). Thus, on its face, the ALJ’s order reflects his consideration of the proper legal standard.
Dr. Polanco testified that without evidence of objective functional gains the Medical Treatment Guides do not recommend more than six months of chiropractic treatment. Dr. Polanco also testified that the claimant may have become dependent on the “palliative” type of chiropractic treatments he was receiving. However, Dr. Polanco rejected the notion that treatment which “feels good” is necessarily “reasonable”or “required.” (Tr. p. 35). In so doing, Dr. Polanco expressly acknowledged that reasonable treatment to cure or relieve the effects of the injury may include treatment “required to maintain that individual” at MMI, or maintain a level of function. (Tr. p. 31). However, he opined that chiropractic treatment was not reasonable or necessary “for maintenance care or to maintain maximum medical improvement.” (Tr. p. 38; Polanco reports June 2, 1997, October 4, 1999).
Based on Dr. Polanco’s testimony, the ALJ found the Medical Treatment Guidelines for low back injuries establish the standard of care for providing chiropractic treatment. Further, the ALJ was not persuaded the claimant presented facts which warranted an exception to the parameters for chiropractic treatment established by the Medical Treatment Guidelines. Rather, the ALJ found the claimant had been receiving regular chiropractic treatment since 1990. (Findings of Fact 2, 3). The ALJ also found the claimant maintains an active life style and has physically demanding job duties. Under these circumstances, the ALJ was not persuaded that the claimant’s need for future chiropractic care is reasonably necessary because of the industrial injury. (Finding of Fact 11).
Moreover, Dr. Polanco’s testimony is consistent with Dr. Hanks’s opinions that the claimant’s condition would not deteriorate without further chiropractic treatment, and that chiropractic treatment was inappropriate after October 1994. (Hanks February 9, 1996). Therefore, we decline to conclude the ALJ misapplied the proper legal standard insofar as he relied on Dr. Polanco’s testimony in denying the disputed treatment.
To the extent the claimant makes other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 11, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 13, 2000 to the following parties:
Michael A. Fraser, P. O. Box 363, Calhan, CO 80808
Montgomery Ward Company, Inc., 2420 E. Pikes Peak Ave., Colorado Springs, CO 80809-6005
Bob Hubbell, Montgomery Ward Legal Dept. 24-S, One Montgomery Ward Plaza, 535 W. Chicago Ave., Chicago, IL 60671
Standard Fire Insurance Company, Barbara Trefren-McDaniel, Aetna Life Casualty, P. O. Box 173712, Denver, CO 80217-3712
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Robert A. Weinberger, Esq. and Julie A. Halaby, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
BY: A. Pendroy