W.C. No. 4-202-009Industrial Claim Appeals Office.
April 24, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) which awarded medical benefits after maximum medical improvement (MMI). We affirm.
The claimant suffered an admitted industrial injury to his shoulder in 1993. As a result of the injury, the claimant underwent two surgeries. In 1994, the respondent filed a Final Admission of Liability for permanent partial disability benefits based on Dr. Parker’s 4.75 percent whole person impairment rating. The claimant objected and requested a Division-sponsored independent medical examination (DIME). The DIME physician, Dr. Ryan, assigned a 10 percent whole person rating. No further action was taken on the claim until the respondent petitioned to close the claim for lack of prosecution. The petition was denied in January 1996.
In 1999 and 2000 the claimant underwent additional but unauthorized shoulder surgery. In 2001, the claimant requested an award of future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The respondent objected and argued the need for future medical treatment was caused by a 1989 shoulder injury. The respondent also renewed the request that the claim be closed for lack of prosecution.
The ALJ denied the respondent’s motion to close the claim. The ALJ also found the claimant established a causal connection between the need for future treatment and the industrial injury. In support, the ALJ found that the claimant was almost completely recovered from the 1989 injury at the time of the 1993 injury, and that the 1993 injury was a significant aggravation of the claimant’s condition. The ALJ also found that as a result of the 1993 injury, the claimant developed chronic shoulder pain and headaches which intensified after 1994 and prompted the claimant to seek additional surgery. Finding further that the treating physicians have recommended additional treatment, the ALJ ordered the respondent to pay for ongoing authorized medical treatment of the industrial injury.
On review, the respondent argues the evidence is insufficient to support the award of Grover-type medical benefits. We disagree.
The respondent is obligated to provide treatment which is “reasonably needed” to cure and relieve the claimant from the effects of the injury. Section 8-42-101(1)(a), C.R.S. 2001. The obligation to provide medical benefits terminates when the claimant reaches MMI. However, Grover v. Industrial Commission supra, allows an award future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the respondent’s right to contest the compensability of any particular treatment on grounds the treatment is not authorized or not reasonably necessary. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
Whether the claimant sustained his burden to prove entitlement to Grover-type medical benefits is a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609
(Colo.App. 1995). “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753
(Colo. 1995).
Here, there is substantial evidence in the claimant’s testimony and the written reports of Dr. Johnson and Dr. Parker that additional treatment will be reasonably necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. On February 7, 2001, Dr. Flannery prescribed OxyContin, Flexeril and Celebrex. In a report dated August 17, 2001, Dr. Johnson noted the prescriptions of OxyContin and expressed concerns about the risks associated with future long term use of these medications. Dr. Johnson also recommended a follow-up examination after the claimant received Botulum injections. On December 11, 2000, Dr. Parker noted the claimant’s use of three prescription medications and suggested the claimant may be a candidate for additional surgery to treat his ongoing mechanical symptoms.
Further, the claimant’s testimony contains substantial evidence that the recommended treatment is needed to relieve the ongoing effects of the industrial injury. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (claimant not required to prove causation by medical evidence) Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). The claimant testified that as a result of the industrial injury he has reduced range of motion, ongoing pain and muscle tension headaches. (Tr. pp. 19, 24, 26, 37). He stated that he sees a physician once a month for these symptoms and takes prescribed muscle relaxers, pain killers and other medications to control the side-effects of the muscle relaxers. (Tr. pp. 26, 27). He added that without the prescription medications his condition is “horrible.” (Tr. p. 28).
In addition, the ALJ reasonably inferred that Dr. Ryan attributed the claimant’s condition to the effects of the industrial injury, and not the 1989 injury. Therefore, it is immaterial whether Dr. Johnson and Dr. Parker linked the need for additional treatment to the industrial injury and the ALJ not err in finding the claimant establish an entitlement to Grover-type medical benefits. .
Moreover, we disagree with the respondent that the recommendation for additional surgery was “speculative.” See Stollmeyer v. Industrial Claim Appeals Office, supra. Dr. Johnson opined that because the claimant’s quality of life was “significantly limited” by the industrial injury, the claimant should undergo a total shoulder arthroplasty or fusion surgery. However, at the claimant’s request to delay further surgical intervention, Dr. Johnson agreed to continue to treat the claimant on a “conservative basis.”
Next, the respondent contends that in ordering “all the treatment prescribed for the Claimant’s right shoulder injury of 1993 is reasonable and necessary to cure and relieve the effects of the work injury” the ALJ has erroneously required the respondent to provide “unlimited medical treatment by unlimited numbers of medical providers.” We perceive no error.
It is proper to consider the ALJ’s oral findings to interpret the written order. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269
(1989). At the conclusion of the hearing, the ALJ found that all of the treatment the claimant received for his shoulder “has been reasonable and necessary” to treat the industrial injury. (Tr. p. 53). Accordingly, we understand the ALJ’s written finding that “all the treatment prescribed for Claimant’s right shoulder injury of 1993 is reasonable and necessary” to refer to all prior
treatment, not a determination concerning the reasonableness of all potential future treatment. Further, because the issue was a claim for Grover-type medical benefits, and the ALJ expressly reserved all other issues for future determination, the ALJ’s award of “ongoing medical benefits other than those which Claimant concedes are unauthorized, or those for which the Claimant makes no claim” inherently preserved the respondent’s right to contest liability for specific future medical treatment on grounds it is unauthorized or not reasonably necessary. Consequently, we deny the respondent’s request to remand the order for clarification.
Finally, we reject the respondent’s contention that the ALJ exceeded his authority insofar as he found the respondent acted improperly in response to the DIME physician’s report. We agree no penalty issue was before the ALJ. However, at the commencement of the hearing, the respondent moved for an order closing the claim for lack of prosecution. (Tr. p. 8). The ALJ’s finding that the respondent did not attempt to close the claim by filing an amended Final Admission consistent with the DIME physician’s rating is pertinent to the ALJ’s resolution of the motion to close. Further, the ALJ’s finding that the respondent did not apply for a hearing to dispute the DIME physician’s opinions on the issue of causation supports the ALJ’s determination the claimant proved a causal connection between his ongoing problems and the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 29, 2001, 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 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. 2001. 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 April 24, 2002 to the following parties:
Michael Gutwein, 12281 County Road 102 South, Alamosa, CO 81101
Provenant Health Partners, Catholic Health Initiatives, 3900 Olympic Ave., #400, Erlanger, KY 47018-1099
Broomfield Family Practice, 1420 W. Midway Blvd., Broomfield, CO 80020-2090
Kathy Lindgren, AIMS, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
Joyce Anderson, Catholic Health Initiatives, 3900 Olympic Ave., #400, Erlanger, KY 47018-1099
Daniel B. Galloway, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Hurtado