W.C. No. 4-572-001.Industrial Claim Appeals Office.
June 22, 2007.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated August 7, 2006, that ordered them to pay the cost of diagnostic procedures and physical therapy in order to determine whether the claimant’s lower back symptoms are related to his industrial injury. The respondents challenge only the ALJ’s order to pay for physical therapy. We set aside the order and remand for the entry of a new order. The ALJ’s pertinent findings of fact are as follows. On January 31, 2003, the claimant injured his right shoulder and right arm during the course and scope of his employment. The claimant testified that he also suffered from lower back pain since the date of his industrial injury. Dr. Pitzer opined that he could not relate the claimant’s lower back pain to his industrial injury. Dr. Pitzer concluded that if further clarification was required, a lumbar MRI might be appropriate. Dr. Hanson reported that the claimant had suffered lumbar back pain for the past several years but the exact date of onset and the etiology of the pain remained undetermined. Dr. Hanson was uncertain whether the claimant’s back pain was related to his January 31, 2003 industrial injury. Dr. Hanson recommended x-rays, a MRI, and physical therapy to address the claimant’s lower back symptoms. Dr. Hanson opined that it was reasonable and necessary for the claimant to undergo an MRI and physical therapy for his lower back symptoms. The ALJ found the clamant had established that diagnostic procedures, including x-rays, a MRI and physical therapy, constitute medical benefits that have a reasonable prospect of diagnosing or defining his condition in order to suggest a course of further treatment. The ALJ ordered the respondents to pay the cost of diagnostic procedures including x-rays, an MRI and
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physical therapy in order to determine whether the claimant’s lower back symptoms are related to his industrial injury. We first note that parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158
(1935). The respondents’ representations and attachments to their brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we may not consider the effect of the attachments to the brief submitted by the respondents in support of their petition to review. On appeal the respondents contend the ALJ erred as a matter of law by ordering authorization of physical therapy as diagnostic testing.
The question of whether the claimant had suffered a compensable injury to his lower back was not an issue before the ALJ. Tr. at 6, 26. Therefore, the ALJ made no finding that the low back was related to the claimant’s admitted industrial injury of February 12, 2003. The claimant testified that the physical therapy for his low back helped his upper extremity. Tr. at 49. We note that while Dr. Hanson recommended physical therapy, he also said it was not known if the claimant’s lumbar back pain was related to his industrial injury of February 12, 2003. Exhibit 2. The ALJ made no finding that the physical therapy for the claimant’s low back was necessary to improve or treat the admitted industrial injury to the claimant’s right shoulder and arm.
Section § 8-42-101(1)(a), C.R.S. 2006 imposes upon every employer the duty to furnish such medical treatment as may reasonably be needed at the time of the injury and thereafter during the disability to cure and relieve the employee from the effects of the injury. Further, that duty has been construed to also include paying for treatment of unrelated conditions when such treatment is necessary to achieve optimum treatment of the industrial injury. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949); Public Service Co. v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999). However, in our opinion the claimant’s reliance on Merriman is misplaced. Merriman involved a claimant whose doctors advised exploratory surgery for a work-related condition, and during surgery, a nonindustrial condition was disclosed. Since the surgery was held to be compensable, the treatment of the subsequently discovered non-industrial condition was found to be compensable. Here, there is no finding that the physical therapy for the low back was necessary to treat the industrial injury to the claimant’s right shoulder and right arm.
In general an employer cannot be charged with the cost of repairing various non-work related conditions that are discovered in the course of treatment for a compensable condition. However, an exception has been recognized when the nonindustrial condition must be dealt with in order to achieve the optimum treatment of the compensable injury. See 5 Larson, Workers’ Compensation Law, § 94.03(5). Thus in Public Service Co. v. Industrial Claim Appeals Office, supra, where there was evidence that treatment of the
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claimant’s non-industrial bipolar disorder was a reasonably necessary prerequisite to surgical treatment of the industrial injury and the respondents were ordered to pay for such treatment. In the present case, again, no finding has been made that the physical therapy on the claimant’s low back is reasonably necessary as a prerequisite to treat the claimant’s industrial injury to his right shoulder and right arm. I Sailas v. Jose Garcia Construction W.C. 3-761-974 (June 11, 1990), the panel found that the ALJ could reasonably infer from certain medical reports that diagnostic studies were performed in an attempt fully to understand the cause of the claimant’s ongoing pain problems. Hence, the ALJ could properly determine that the studies were casually related to the industrial injury and hold the respondents liable for the expense of performing them. However, here we do not read the ALJ’s order as determining that the physical therapy on the claimant’s low back, as distinguished from the x-rays and MRI which are not the subject of appeal, is necessary to understand the cause of the claimant’s admitted industrial injury to his right shoulder and right arm.
In general the burden is on the claimant to prove his entitlement to benefits by a preponderance of the evidence. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Lerner v. Wal-Mart Stores Inc., 865 P.2d 915(Colo.App. 1993); Section 8-42-101(1)(a), C.R.S. 2006. Here, because there has been no determination of whether the claimant’s low back condition is compensable and no finding that the physical therapy must be provided in order to treat or make a diagnosis concerning the industrial injury, we can not discern whether the claimant has carried that burden. Therefore, the findings of fact are not sufficient to permit appellate review. Section 8-43-301 (8) C.R.S. 2006. We express no opinion on whether the record would support such a finding. We conclude that the ALJ’s order is insufficient to permit appellate review and the matter must be remanded for additional findings concerning the claimant’s entitlement to physical therapy.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 7, 2006, requiring the respondents to pay for physical therapy regarding the claimant’s lower back symptoms is set aside and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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Antonio Prieto, South Saulsbury Court Lakewood, CO, United Subcontractors Inc. c/o Metropolitan Insulation Cindy Knight, West Dartmouth Ave. Unit 16 Englewood, CO, Zurich American Insurance Co. Valerie Burke, Kansas City, MO, Sawaya Law Firm Katherine E. McClure, Esq., Ogden Street Denver, CO, (For Claimant).
The Kitch Law Firm Michelle L. Prince, Esq., Evergreen Pkwy, Evergreen, CO, (For Respondents).
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