W.C. No. 4-517-537.Industrial Claim Appeals Office.
May 31, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ), which dismissed her requests for 24 hour attendant care, a hot tub, and payment for her husband driving her to medical appointments. We affirm.
The ALJ conducted a hearing to determine whether the claimant should be reimbursed for various expenses pertaining to medical treatment and, also, whether a hot tub and 24-hour attendant care were reasonable and necessary to cure and relieve the effects of her injury. The ALJ entered factual findings that are summarized as follows.
The claimant sustained an industrial accident in the nature of a motor vehicle accident. Another ALJ ordered the insurer to pay for tests to evaluate what caused the claimant’s blackout episodes; however, it was unclear whether their cause had been determined. A Division-sponsored independent medical examination (DIME) determined that the claimant was not at maximum medical improvement (MMI). The DIME physician noted that further investigation of the claimant’s blackouts was required as a consequence of her accident. Numerous physicians examined the claimant and provided differing opinions as to the diagnosis and causation of her many complaints. Dr. Lesnak opined that the medical evidence did not suggest the claimant’s blackouts were necessarily related to her accident and, also, that another doctor’s recommendation of providing 24-hour supervision was based on the claimant’s subjective complaints without clear medical evidence. The ALJ found Dr. Lesnak’s opinion concerning 24-hour supervision persuasive. The ALJ therefore determined that it was improbable that the claimant required 24-hour supervision as a result of her accident. Moreover, the ALJ stated that a “fair reading” of the DIME physician’s opinion suggests additional diagnostic testing should be undertaken to determine whether it is medically probable that the claimant’s blackouts are caused by the accident.
The ALJ also was not persuaded that a hot tub was reasonable and necessary to cure and relieve the claimant from the effects of her injury. A hot tub was not included in the treatment recommendations of the DIME physician. In addition, the hot tub was considered to be palliative treatment by the physician who prescribed it, and the ALJ was not persuaded that it was supported by W.C. Rule of Procedure 17, Exhibit 7, 7 Code Colo. Reg. 1101-3 (Complex Regional Pain Syndrome/Reflex Sympathetic Dystrophy Medical Treatment Guidelines), which indicates, among other things, that the determination of the need for home exercise equipment should be based on medical necessity to maintain MMI. The ALJ also found the claimant’s husband did not miss any of his regular work driving trucks as a result of driving the claimant to her medical appointments. Therefore, the ALJ denied the claimant’s request for 24-hour supervision or attendant care, denied the claimant a hot tub, and denied the claimant’s request to reimburse her husband for driving her to medical appointments.
On appeal, the claimant alleges due process violations, reviews evidence in the record that may support her claims, and argues that the DIME physician’s determination is binding as to matters of causation. We decline to disturb the ALJ’s order.
The respondent is liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2005; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The determination of whether a particular treatment is reasonable and necessary to treat the industrial injury is a question of fact for the ALJ. We may not disturb the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513
(Colo.App. 1984). Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In this regard medical evidence is neither required nor dispositive. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28
(1963). However, insofar as medical evidence is presented, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Furthermore, the substantial evidence standard requires that we defer to the ALJ’s credibility determinations and plausible inferences he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The courts have held that to be a compensable medical benefit, the requested service must either be medically necessary or incidental to obtaining such treatment. A service is a “medical necessity” if it cures or relieves the effects of the injury and is directly associated with the claimant’s physical needs Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996) Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993). A service is “incidental” to treatment if it “enables” the claimant to obtain medical treatment or is a “minor concomitant” to necessary medical treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362, 364 (Colo.App. 1995).
The question of whether a particular service is medically necessary or incident to obtaining medical treatment is to be resolved by the ALJ based on the particular facts of the case Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116
(Colo.App. 1997); Edward Kraemer Sons, Inc. v. Downey, supra; Atencio v. Quality Care, Inc., supra. Because the issue is factual, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Bellone v. Industrial Claim Appeals Office, supra; § 8-43-301(8), C.R.S. 2005.
The claimant argues that, to the extent the ALJ determined her request for 24-hour attendant care was not related to her injury, he violated due process by raising a new issue not reasonably anticipated by the claimant. Due process requires that where an administrative adjudication turns on issues of fact, both parties must be afforded advance notice of the pending adjudication in order to prepare evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the ALJ is vested with broad discretion to determine the course of an evidentiary hearing. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s ruling exceeds the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). The party who alleges an abuse of discretion has the burden to provide a record sufficient to show the error.
The claimant’s request for around-the-clock supervision or attendant care was raised in the context of her blackouts. Findings of Fact, Conclusions of Law, and Order (Order) at 5, ¶ 14. The ALJ found that the persuasive medical evidence indicated that the claimant’s blackouts were not a proximate consequence of her injury; therefore, 24-hour supervision was not reasonable and necessary. Order at 8-9, ¶ 27. The claimant appears to assert she was unaware that the relatedness of the 24-hour service to protect her from the consequences of her blackouts may be an issue at hearing. However, the record reflects that the claimant anticipated addressing medical benefits and their relatedness to her injury. We note that the claimant’s counsel advised the ALJ at the beginning of the hearing that the issues for hearing included medical benefits as necessary and related to the injury. Tr. at 8. In addition, the claimant indicated the issue of medical benefits related to her injury as an issue in her application for hearing in this matter. Moreover, a review of the ALJ’s decision reflects that the ALJ denied 24-hour care because he determined it was not reasonably necessary to cure and relieve the effects of the claimant’s injury. The ALJ’s decision is supported by substantial evidence in the record. Exhibit A B; Exhibit D (Colliton Deposition at 19-21); Exhibit 13 at 30.
The claimant next asserts that the DIME physician’s report is binding as to the question of whether her blackouts are causally related to her injury. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (only determinations inherent in opining on MMI or impairment, such as causal relationship between condition and injury, must be overcome by clear and convincing evidence). However, conflicting inferences or ambiguous opinions in the DIME physician’s report present factual questions for the ALJ to resolve. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The ALJ determined that the DIME physician believed the claimant’s blackouts were temporally related to the accident, but recommended that additional diagnostic testing needed to be undertaken to determine if it is medically probable that the accident is causing the blackouts. The ALJ’s findings are supported by the evidence and are, therefore, binding on review. Ex. 13 at 30-31; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The claimant also asserts that the ALJ’s actions indicate “a lack of impartiality,” thereby impermissibly infringing on her due process rights. In determining whether the claimant has been afforded due process, the ALJ is entitled to the presumption of integrity, honesty, and impartiality and bald allegations of bias are insufficient to overcome that presumption. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). In addition, it was appropriate in the context of the claimant’s request for 24-hour care for the ALJ to consider whether the claimant’s blackouts were work-related.
The claimant objects on due process grounds to the ALJ making reference to Rule of Procedure 17, 7 Code Colo. Reg. 1101-3, concerning the medical treatment guidelines, when discussing her request for a hot tub. It does not appear that the parties made direct reference to the medical treatment guidelines in support of their respective positions. The ALJ referred to provisions in the rules concerning home exercise programs and equipment, and the relevance of these provisions is unclear from his order. However, the ALJ was not persuaded that a hot tub was reasonable and necessary to cure and relieve the claimant from the effects of her injury. The ALJ credited the fact that the DIME physician did not include such treatment in his recommendations. Order at 9, ¶ 28. The ALJ’s decision to deny a hot tub is supported by substantial evidence in the record and we therefore perceive no basis for reversing the ALJ’s determination. Exhibit 13 at 29.
The claimant also alleges that the ALJ violated her due process protections by referring to the timeliness of her request to effectively provide wage reimbursements for her husband who allegedly missed time from work in order to drive her to medical appointments. The ALJ found there was no persuasive evidence that the claimant requested reimbursement from the insurer until after the time period at issue and therefore failed to establish that she requested the insurer to provide her transportation to her medical appointments in lieu of her husband having to drive her. Order at 9-19, ¶ 29. In other words, the ALJ found the claimant did not give the insurer a reasonable opportunity to provide her with appropriate arrangements for transportation to and from her medical appointments. However, the basis for the claimant’s request was that her husband had to miss work to drive her to medical appointments and should therefore be reimbursed. Order at 6, ¶ 18; Tr. at 10. The ALJ was not persuaded that the claimant’s husband actually missed work to drive her to appointments. Order at 9, ¶ 29. This finding is supported by the record. Tr. at 90-91, 99-104.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 22, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Curt Kriksciun
Neva Parker, Cedaredge, CO, Iowa Tanklines, Omaha, NE, Diane Oliver, Cambridge Integrated Services Group, Inc. Phoenix, AZ, A/V Tronics, Inc., Denver, CO, Amy K. Eaton-Fitzpatrick Esq., Killian, Guthro Jensen, P.C., Grand Junction, CO, (For the Claimant).
Kathleen M. Fairbanks, Esq., William McCaslin, Esq., Treece, Alfrey, Musat Bosworth, P.C., Denver, CO, (For the Respondents).