W.C. No. 4-008-040Industrial Claim Appeals Office.
September 8, 1995
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ) which reopened the claim, and awarded future medical benefits. We affirm.
The following facts are undisputed. The claimant suffered an admitted industrial injury to his back on January 4, 1991. The claim was closed upon the respondent’s filing of an uncontested Final Admission of Liability dated April 25, 1991. The Final Admission admitted liability for “0” permanent disability, and no other future benefits, based upon Dr. Smith’s March 13, 1991 report which released the claimant from treatment, without evidence of permanent impairment.
In December 1993, the claimant filed a petition to reopen the claim. The petition was based upon Dr. Berg’s November 17, 1993 report which stated that the claimant experienced a worsening of condition. The claimant subsequently scheduled the petition for hearing and requested further medical benefits.
The ALJ found that the claimant suffered a worsening of condition in October 1992, which caused increased back pain and prompted the claimant to seek treatment from Dr. Berg. The ALJ found that the worsened condition restabilized on March 24, 1993, but that the claimant needs “ongoing medical benefits to maintain his condition at maximum medical improvement.” Therefore, the ALJ reopened the claim, and ordered the respondent to provide future medical benefits for treatment by Dr. Berg necessary to “maintain the claimant” at maximum medical improvement (MMI). The ALJ also reserved all other issues for future determination.
On review, the respondent contends, inter alia, that the ALJ erroneously reopened the claim. We perceive no reversible error.
Generally, the need for future medical treatment must be established at the time of the determination of permanent disability, and reopening a claim for the purpose of awarding future medical benefits is not permitted where the claimant had an opportunity to present evidence of the need for ongoing medical treatment prior to the closure of the claim, but did not do so. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (1987); Department of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 683 (1971). However, it is proper to reopen a claim and award additional medical benefits where the claimant experiences an “unexpected and unforeseeable” worsening of his physical condition. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). Furthermore, the ALJ’s determination that the claimant sustained his burden of proving an “unexpected and unforeseeable” worsening of condition, is absolute and binding, in the absence of an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983).
In finding that the claimant sustained his burden to prove an “unexpected” worsening of condition, the ALJ rejected the respondent’s contention that the claimant was aware of his need for future treatment in April 1991. The ALJ inferred from the fact that Dr. Smith did not indicate a need for further medical care in his March 13 report, that the claimant was not aware of a need for further medical treatment in April 1991, even though he continued to experience back pain. Furthermore, the ALJ determined that the claimant’s need for further medical care was related to the worsening of the claimant’s condition in October 1992, and not the claimant’s condition in April 1991.
The claimant’s testimony is arguably inconsistent concerning whether he suffered a worsening of condition between March 1991 and March 1993 See Tr. pp. 18, 20, 21, 25. However, it was solely the ALJ’s prerogative to resolve the inconsistencies, and he did so by implicitly crediting that the claimant’s testimony that his back condition was worse after October 1992, than it was at the time the claim was closed. Tr. pp. 12, 13, 26 Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication) (inconsistent and contradictory evidence is not uncommon to adversary process).
Furthermore, Dr. Berg’s medical report, together with that part of the claimant’s testimony which the ALJ found persuasive, constitutes substantial evidence supporting the ALJ’s pertinent findings. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961) (substantial evidence not determined by number of witnesses presented by each party); Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (when viewed in the light most favorable to the prevailing party is the evidence is sufficient to support the ALJ’s pertinent findings); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Consequently, we cannot say that the ALJ abused his discretion in reopening the claim. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095
(Colo. 1985) (abuse of discretion occurs where the ALJ’s order exceeds the bounds of reason).
Next, the respondent contends that the ALJ’s findings of fact do not support the award of future medical benefits. We disagree.
As stated by the respondent, Milco Construction v. Cowan, supra, stands for the proposition that Grover medical benefits are not available unless the claimant proves that:
“but for a particular course of medical treatment, a claimant’s condition can reasonably be expected to deteriorate, so that he will suffer a greater disability than he has sustained thus far.”
However, contrary to the respondent’s argument nothing in Grover v. Industrial Commission, supra, nor Milco Construction v. Cowen, supra, preclude the ALJ from awarding future medical treatment which is designed to “maintain” the claimant at MMI. To the contrary, the Cowen court held that Grover benefits are not “limited” to such maintenance benefits. Milco Construction v. Cowen, 860 P.2d 542.
Moreover, medical treatment which “maintains” the claimant at MMI inherently serves to prevent “deterioration” of the claimant’s condition. In other words, without a particular course of treatment necessary to maintain the claimant at MMI, the claimant can reasonably be expected to suffer a greater disability. Consequently, the ALJ’s finding that the claimant requires future medical treatment to “maintain” his condition does support the ALJ’s award of Grover benefits.
Lastly, the respondent contends that the ALJ erred insofar as she reserved all other issues, including permanent disability, for a future determination. The respondent argues that “medical benefits” was the only issue endorsed for hearing, and therefore, the claimant is limited to an award of additional medical benefits. We conclude that the contested portion of the order is not subject to review.
The reservation of all other issues for a future determination neither awards or denies benefits or penalties within the meaning of § 8-43-301(2), C.R.S. (1995 Cum. Supp.). Consequently, the reservation is not a final order, and is not subject to review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); Dubravac v. Golden Ford, W.C. No. 2-993-938, May 5, 199 ; Geers v. Catech Co., W.C. No. 2-901-421, July 26, 1993.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 8, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 8, 1995 to the following parties:
Javier Gutierrez, 613 Maple, Rocky Ford, CO 81067
Swedish Medical Center, P.O. Box 2901, Dept. 8752WC, Inactive 9-31-93, Englewood, CO 80150
OHMS, Attn: Steve Abeyta, 700 S. Broadway, #1132, Denver, CO 80273
Health One, Attn: Jill Kelsic, 720 S. Colorado Blvd., #1260-S, Denver, CO 80224
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
Fredric A. Ritsema, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
BY: _______________________