W.C. No. 4-223-995Industrial Claim Appeals Office.
November 22, 1996
FINAL ORDER
The respondents seek review of the final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant permanent partial disability benefits under the schedule continued in § 8-42-107(2)(a), C.R.S. (1996 Cum. Supp.), and continuing medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We affirm.
The ALJ found that the claimant sustained a compensable industrial injury in the nature of “bi-lateral cumulative trauma disorder in her forearms.” The claimant’s treating physician, Dr. Burke, determined that the claimant reached maximum medical improvement (MMI) on December 2, 1994, with no evidence of permanent impairment. At that time, Dr. Burke stated that the claimant was discharged from “acute care” and was to “follow up with her private physician as planned.”
The claimant testified that she continued to experience problems, particularly with her right upper extremity. On her own initiative, the claimant obtained an examination by Dr. Rook. Dr. Rook opined that the claimant suffered from cumulative trauma disorder with resulting permanent medical impairment of seven percent of the right upper extremity. Dr. Rook also stated that the claimant “might benefit from a trial of zostrix cream,” and “if she can tolerate it, I would recommend an anti-inflammatory.”
Based on this evidence, the ALJ found that the claimant is entitled to permanent partial disability benefits for loss of an arm at the shoulder pursuant to § 8-42-107(2)(a). Further, relying on the claimant’s testimony concerning continuing symptoms, and Dr. Rook’s testimony concerning the need for zostrix cream and an anti-inflammatory medication, the ALJ determined that the claimant is entitled to ongoing medical benefits under Grover.
I.
On review, the respondents first contend that the ALJ erred in awarding benefits under § 8-42-107(2)(a) because the treating physician opined that the claimant has no residual medical impairment. Relying on Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the respondents argue that the claimant should have obtained authorization for a change of physicians, or obtained a Division-sponsored independent medical examination (IME), before challenging Dr. Burke’s opinion concerning medical impairment. We disagree.
The respondents’ argument notwithstanding, there is no statutory authority for the proposition that claimants who seek an award of benefits under the schedule contained in §8-42-107(2) are required to adhere to any particular procedure in order to establish their right to benefits. We have long held, and the court of appeals has agreed, that the IME provisions found at § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.), apply only to whole-person medical impairments, and do not govern the procedure in cases where the claimant seeks benefits under the schedule. Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), aff’d., 919 P.2d 246 (Colo. 1996) (a distinction between scheduled and non-scheduled impairments is that they are subject to different procedural rules, particularly the IME procedures set out in § 8-42-107(8)(c) which is employed in cases of whole-body impairment); Santistevan v. Colorado State University,
W.C. No. 4-156-194, February 2, 1995. Neither is there any authority requiring claimants to seek a change of physician prior to challenging the scheduled rating of the authorized treating physician.
Story v. Industrial Claim Appeals Office, supra is not authority to the contrary. Story held that, once the authorized treating physician determines that the claimant has reached MMI, the claimant may not circumvent the IME provisions of § 8-42-107(8)(b), C.R.S. (1996 Cum. Supp.), by the simple expedient of obtaining a change in the authorized treating physician. The result in Story was predicated on the express statutory provisions governing determinations of MMI. As we have already indicated, determinations of medical impairment under the schedule are not subject to the type of statutory restrictions which were discussed in Story. In fact, to reach the result argued for by the respondents would amount to judicial legislation which is beyond our authority. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985).
It follows that the ALJ did not err in crediting Dr. Rook’s opinion concerning the extent of the claimant’s scheduled impairment. It was within the ALJ’s authority as the fact finder to determine the degree of medical impairment under §8-42-107(2).
II.
The respondents next contend that the ALJ erred in awardin Grover medical benefits. The respondents assert that the only evidence which could justify an award of ongoing medical benefits is the testimony of Dr. Rook. However, the respondents argue that Dr. Rook’s testimony was “speculative” because he merely stated that the claimant “might” benefit from zostrix cream and anti-inflammatories. We reject this argument.
In order to prove a right to ongoing medical benefits the claimant is required to establish, by substantial evidence, that future medical treatment will be reasonably necessary to relieve from the effects of the injury, or prevent future deterioration of the claimant’s condition. However, the claimant need not establish that a particular course of treatment has been prescribed. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
In determining whether there is substantial evidence to support the ALJ’s award of Grover medical benefits, we must defer to her resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). It is particularly within the province of the ALJ to assess the weight and credibility of the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Although a “reasonable medical probability” is the standard for admission of medical testimony, the testimony need not be couched in those terms in order for the ALJ to consider it. Beaudoin Construction Co. v. Industrial Commission, 626 P.2d 711
(Colo.App. 1981).
Here, the record is sufficient to support the ALJ’s award o Grover medical benefits. The ALJ could properly interpret Dr. Rook’s report as a positive recommendation that the claimant undergo a trial of zostrix cream and anti-inflammatory medication. The fact that Dr. Rook could not predict the outcome of these therapies does not nullify his recommendation that the claimant attempt them. Thus, contrary to the respondents’ arguments, Dr. Rook’s report was not so indefinite that the ALJ was required to treat it as speculative.
Moreover, we reject the respondents’ assertion that Dr. Rook’s testimony is the only evidence relevant to the issue o Grover medical benefits. To the contrary, Dr. Burke’s recommendation that the claimant follow up with her personal physician lends further credence to the ALJ’s determination that the claimant needs post-MMI treatment in order to maintain her condition. This conclusion is further bolstered by the claimant’s testimony that she endured ongoing symptoms after reaching MMI.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum.Supp.).
Copies of this decision were mailed November 22, 1996
to the following parties:
Carolyn S. Harrell, 3650 N. Academy Blvd., Apt. #7, Colorado Springs, CO 80917-5017
Nighthawk Industries, Inc., 4835 Centennial Blvd., Colorado Springs, CO 80919-3308 % Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
James A. May, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Michael W. Sutherland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
By: ______________________________________________