W.C. No. 4-120-307.Industrial Claim Appeals Office.
August 14, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ). The claimant contends the ALJ erred as a matter of fact and law in concluding that post-maximum medical improvement (MMI) medical treatment was neither causally related to the industrial injury, nor reasonable and necessary to treat the injury. The claimant also disputes the ALJ’s failure to impose a penalty based on an alleged “unilateral termination” of medical benefits. We affirm.
The claimant sustained a compensable low back injury in February 1991. A treating physician, Dr. Hall, placed the claimant at MMI on November 3, 1992. At that time Dr. Hall diagnosed the claimant’s “pain generator” as the sacroiliac joint. He prescribed post-MMI treatment to consist of medications and a TENS unit.
In June 1993, the claimant returned to Dr. Hall and reported increased symptoms. Thereafter, Dr. Hall began to prescribe physical therapy and massage therapy treatments through July 17, 2002, the date of the first hearing. The claimant also received continuing prescriptions for Elavil and Relafin, and a prescription for a membership at the YMCA.
On February 25, 2002, the insurance adjuster authored a letter stating that the insurer would “no longer be responsible for further medical treatment.” The letter stated this decision was based on “a medical report from an authorized treating physician indicating that you [the claimant] do not require further medical treatment as a result of the industrial injury in February 1991.”
The respondents filed an application for hearing seeking to terminate their responsibility for ongoing medical benefits. At the hearing, the respondents presented the report and testimony of Dr. Finn, who performed an independent medical examination (IME) in August 1998. Dr. Finn opined claimant’s cervical and thoracic symptoms were not caused by the industrial injury, but was related to the claimant’s work activities involving a computer and driving. Dr. Finn also opined medical treatment after 1998 was not related to the industrial injury. Based on the gap in treatment between the date of MMI and the commencement of treatment in June 1993. Dr. Finn also opined the treatments were not reasonable and had not improved despite the lengthy treatment. (Tr. January 15, 2003, Pp.8).
The respondents also presented the report and testimony of Dr Basse. Dr. Basse opined the claimant’s need for treatment was not causally-related to the industrial injury. In support of this opinion, Dr. Basse stated the mechanism of injury was not severe enough to account for the claimant’s ongoing problems and they were more likely the result of natural wear and tear caused by the claimant’s post-injury work activities and activities of daily living. Dr. Basse also opined the ongoing medical treatment was not reasonable and necessary, but instead the claimant had developed a “dependence” upon it. Dr. Basse also stated that it was her opinion that the treatment was not beneficial to the claimant in assisting her to become self-reliant. (Tr. January 15, 2003, Pp. 83-84, 91).
Crediting the opinions of Dr. Finn and Dr. Basse, the ALJ found that claimant’s need for treatment is not due to the 1991 work injury, but to “aging and other activities.” Further, the ALJ found the treatment, which included physical therapy, massage therapy, YMCA membership, and medications “is not reasonably necessary to cure or relieve the effects of the 1991 low back strain.” Instead, the ALJ found the claimant “obtains little functional gain from the treatment, although she believe [sic] such treatment is necessary.”
The ALJ also rejected the claimant’s contention that the respondents are subject to a penalty under section 8-43-304(1), 1990 Cum. Supp. ($100 per day penalty for violating an act or rule). Insofar as pertinent, the ALJ stated that section 8-43-203(2), C.R.S. 2002, is not applicable because that statute merely provides for a specific penalty if the insurer fails timely to file a notice of contest or admission of liability.
I.
On review, the claimant contends the ALJ’s findings that the medical treatment was not causally-related to the industrial injury, and was not reasonable and necessary are not supported by the evidence and are contrary to the law. Essentially, the claimant argues the ALJ erred in relying on the “speculative” opinions of Dr. Finn and Dr. Basse, and that the “record as a whole” does not support the ALJ’s denial of benefits. The claimant also asserts the ALJ “abused his discretion” and was not impartial when rendering his decision. We are not persuaded by any of these arguments.
The question of whether the need for treatment is causally-related to an industrial injury is one of fact. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Similarly, the question of whether medical treatment is reasonable and necessary to cure or relieve the effects of an industrial injury is one of fact. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We particularly note that the weight and credibility to be assigned expert medical opinion is within the ALJ’s province as the finder of fact. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
The claimant’s assertions notwithstanding, substantial evidence supports the ALJ’s finding that the claimant’s need for medical treatment was not causally-related to the industrial injury. The ALJ relied on Dr. Basse, who noted the claimant’s injury was originally diagnosed as a “strain,” and appeared to improve with conservative treatment prior to the date of MMI. There was a significant gap in treatment between the date of MMI and the claimant’s report of worsening symptoms in June 1993. When the claimant did report the symptoms to Dr. Hall, she stated they were associated with increased work and decreased exercise. All of this evidence tends to corroborate the opinion of Dr. Basse that the aggravation of the claimant’s symptoms was caused by intervening work activities and the aging process, not the natural progression of the claimant’s industrial injury. Further, the opinions of Dr. Basse are corroborated by those of Dr. Finn.
It is true that some evidence in the record, including the opinions of Dr. Hall and the physical therapist would support a contrary conclusion. However, based on this record, we may not substitute our judgment for that of the ALJ concerning the credibility of the expert witnesses or the inferences to be drawn from the evidence. Cordova v. Industrial Claim Appeals Office, supra; University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001) (question of whether need for medical treatment of claimant’s back was caused by prior industrial injury, subsequent industrial aggravation, or both, was question of fact for ALJ).
For similar reasons, we conclude the ALJ’s finding that the medical treatment sought by the claimant was not reasonable and necessary to prevent deterioration of the claimant’s condition or relieve the effects of the injury is supported by substantial evidence. The respondents’ experts opined that the treatment was not necessary to treat the claimant’s condition caused by the injury and was of no practical benefit other than creating a form of unreasonable dependence on the medical care delivery system. Although the claimant’s experts expressed contrasting opinions, the ALJ was not persuaded by this evidence. Thus, the ALJ’s finding that the treatment was no longer reasonable and necessary is supported by substantial evidence and must be upheld.
We reject the claimant’s assertion that the ALJ’s findings reflect bias or impartial conduct. The ALJ is presumed to be competent and unbiased unless the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1995). The ALJ’s order reflects a consideration of both the testimonial and documentary evidence submitted by the parties, as well as a thorough and reasoned consideration of the evidence. The ALJ’s finding that the claimant “may feel an entitlement to continue [medical benefits], but she has none,” represents a plausible interpretation of the claimant’s testimony, and an accurate depiction of the ALJ’s conclusion concerning the evidence. The statement certainly does not indicate the kind of bias, prejudice or pre-judgment of the evidence which would require us to conclude the claimant did not receive a fair hearing. See Neoplan USA Corp. V. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989).
Insofar as the claimant makes other arguments concerning these issues, we find them to be without merit.
II.
The claimant next contends the ALJ erred in denying her claim for a penalty. Although the ALJ’s order addresses several potential bases for assessing a penalty, the claimant does not raise all of these arguments on appeal. Rather, the claimant asserts, the ALJ erred in failing to impose a penalty under section 8-43-203(2) because the insurer unilaterally terminated his right to medical benefits. The claimant argues the ALJ failed to consider section 8-43-203(2)(d), C.R.S. 2002, which provides that “if any liability is admitted, payment shall continue according to admitted liability.” We find no error.
Section 8-43-304(1) does provide for the imposition of the penalty on a party which “does any act prohibited” by the statute. Of course, the claimant bears the burden of proof to establish that the insurer violated a specific provision of the act. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995).
Here, we perceive no legal basis for concluding that the insurer violated section 8-43-203(2)(d). The claimant argues that by continuing to pay ongoing medical benefits after MMI the respondents in effect admitted that the need for subsequent treatment was causally-related to the injury, and they could not take the contrary position without first obtaining an order from an ALJ relieving them of their admission. However, an admission of liability for the payment of medical treatment does not amount to an admission that all subsequent medical treatment is causally-related to the industrial injury, or that all subsequent treatment is reasonable and necessary. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Even if the respondents are obligated by admission or order to pay ongoing medical benefits after MMI, they always remain free to challenge the cause of the need for continuing treatment and the reasonableness and necessity of specific treatments. Hanna v. Print Expediters Inc., ___ P.3d ___ (Colo.App. No. 02CA2237, June 5, 2003); Davis v. ABC Moulding, W.C. No. 3-970-332
(September 19, 1999). Indeed, an award of post-MMI medical benefits i general in nature and does not constitute an award of specific medical benefits. Hanna v. Print Expediters Inc., supra. It follows that the adjusters letter of February 25, 2002, which announced the insurer’s position that it considered future medical treatment unrelated to the industrial injury did not abrogate any admission with respect to medical benefits, and did not constitute a violation of section 8-43-203(2)(d). Hence, there was no error in denying penalties.
The claimant does not now contend that the respondents’ conduct violated a Rule of Procedure. Hence, we have not considered that question.
IT IS THEREFORE ORDERED then the ALJ’s order dated February 24, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 order were mailed to the parties at the addresses shown below on August 14, 2003 by A. Hurtado.
Susan Putnam, 2473 Craycroft Dr., Colorado Springs, CO 80920
Putnam Associates, Inc., 3320 Austin Bluffs Pkwy., Colorado Springs, CO 80918
Myra L. Jelinek, Aetna Life and Casualty Company/Travelers Insurance Company, P. O. Box 173762, Denver, CO 80217-3762
Kathleen Pennucci, Special Funds Unit, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)