W.C. Nos. 4-290-189, 4-414-636Industrial Claim Appeals Office.
December 17, 2001
FINAL ORDER
In these consolidated workers’ compensation cases, the claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which denied a petition to reopen, and denied the claim for medical benefits. We affirm.
The claimant sustained a compensable back injury in February 1996. The claim for this injury was assigned W.C. No. 4-290-189. The claimant was diagnosed with a chronic lumbar sprain and spodylolisthesis. On July 23, 1998 the claimant was placed at maximum medical improvement (MMI), and he was assigned a medical impairment rating. Prior to being placed at MMI the claimant underwent a surgical consultation with Dr. Reiss. Dr. Reiss noted the claimant was overweight and exhibited a number of “nonphysiological factors,” and he opined surgery would be unlikely to help the claimant. (Report of Dr. Reiss, May 29, 1998). On August 11, 1998 the respondents filed a final admission of liability, and the claimant did not timely object to the admission.
On January 29, 1999, the claimant fell at work and injured her left knee and ankle. The claimant also reported experiencing back pain. The claim for this injury was assigned W.C. No. 4-414-636.
The January 29 injury was primarily treated by Dr. Hattem. In April 1999, Dr. Hattem opined the claimant’s continuing back symptoms were chronic in nature, and the January 1999 “accident was not sufficiently severe to cause a significantly different and new back problem” for the claimant. Despite this opinion, Dr. Hattem referred the claimant to Dr. Reiss for another surgical evaluation. In a report dated February 16, 1999, Dr. Reiss stated that he advised the claimant that surgery “is certainly the last choice for [the claimant].” Dr. Reiss also testified that he did not believe the claimant was “a great candidate for surgery” and the claimant “would not be high on my list to consider for surgery because of the likelihood of not improving her function at all.” (Reiss Depo. pp. 42-43). On May 4, 1999 Dr. Hattem placed the claimant at MMI for the lower extremity injuries and referred the claimant “to her personal physician for treatment of her back.”
The ALJ denied the claimant’s petition to reopen the claim for the 1996 back injury finding the claimant failed to prove her condition had worsened. In support the ALJ found the claimant’s symptoms continued after she was originally placed at MMI in July 1998, the medical records failed to show any significant change in the claimant’s clinical presentation, and the ALJ credited Dr. Hattem’s testimony that the only basis for reopening the 1996 claim was that the claimant changed her for mind about surgery. (Hattem Depo. pp. 23, 27). Further, the ALJ found there was “insufficient evidence to establish that the treatment recommended by Dr. Reiss would be reasonably expected to improve” claimant’s condition.
The ALJ also found the January 1999 injury amounted to nothing more than a temporary aggravation of the claimant’s back problems. Therefore, she concluded that “no award of benefits related to the lumbar spine are [sic] attributable to the 1999 work injury.” Thus, the ALJ determined the claimant “is still at MMI as previously determined for both injuries.”
I.
The claimant argues that regardless of which of the two injuries is considered the cause of the claimant’s symptoms, the record establishes that she needs additional treatment for her back condition. Consequently, the claimant argues the evidence does not support the ALJ’s determination that the claimant remains at MMI. We disagree.
MMI exists when the underlying condition causing the disability has become stable and when no further treatment is “reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2001, Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). A claimant may reopen an award upon proof that his physical condition has worsened and additional medical benefits are warranted. See Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). The questions of whether the claimant proved a worsened condition, and whether additional medical benefits are reasonably necessary to treat or relieve the worsened condition, are issues of fact for determination by the ALJ. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000); Public Service Company of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999).
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts of the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Here, the ALJ found, based on the medical records and testimony of Dr. Hattem, that the claimant’s ongoing back symptoms are attributable to the 1996 injury and do not represent a worsening of condition after the claimant was placed at MMI in July 1997 . The evidence cited by the ALJ amply supports these of findings, and the fact that other inferences are possible does not afford any basis for appellate relief. Further, the ALJ determined that the treatment proposed by Dr. Reiss, including injections and possible surgery, could not reasonably be expected to improve the claimant’s condition. This conclusion constitutes a plausible interpretation of the evidence since Dr. Reiss himself recommended against surgery in 1998, and expressed substantial doubt that injections and surgery are likely to improve the claimant’s current condition. It follows that the record supports the ALJ’s conclusion that the claimant remains at MMI because the treatment proposed by Dr. Reiss does not offer a reasonable prospect for improving the claimant’s condition. Section 8-40-201(11.5). The claimant does not argue the treatment recommendations of Dr. Reiss should be provided as “maintenance care,” and we do not consider that question.
The ALJ also found, based on Dr. Hattem’s opinion, that the 1999 injury caused only a temporary aggravation of the claimant’s back preexisting condition and the need for medical treatment, if any, is attributable the 1996 injury. Therefore, the fact that Dr. Hattem referred the claimant to her private physician for additional back treatment did not vitiate his finding of MMI for the 1999 injury. To the contrary, the evidence supports the ALJ’s finding that on May 4, 1999, Dr. Hattem placed the claimant at MMI for all compensable consequences of the 1999 injury. See Chestnut v. University of Colorado,
W.C. No. 4-255-4 98 (December 13, 1996).
II.
The claimant next contends she was denied due process of law because the ALJ delayed entering an order for approximately nine months after the April 20, 2000 hearing. The claimant asserts the delay amounts to a denial of due process of law because the ALJ could not have remembered the claimant’s testimony “or perhaps any of the facts of the case.” We find no error.
As the claimant recognizes, the Court of Appeals has held the statutory time limit for the ALJ to enter an order is directory rather than mandatory. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). The version of § 8-43-215 considered in Langton was amended, effective April 28, 2000, so as to delete the requirement for a “summary order” and to require the entry of the written order “within 30 calendar days after the conclusion” of the hearing. 2000 Colo. Sess. Laws, ch. 138 at 480-481. However, we do not perceive these amendments as meaningfully affecting the holding in Langton. Thus, although we do not condone delays in the entry of orders beyond the directory date established by the legislature, the delay in this case does not require that the order be set aside.
Neither do we perceive any denial of due process of law. Due process does not require any particular procedure so long as the basic opportunity for a fair hearing and judicial review are present. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Further, an order may not be invalidated based on a due process violation unless it appears a party has been prejudiced by the alleged violation. Norton v. Colorado Board of Medical Examiners, 821 P.2d 897 (Colo.App. 1991).
The claimant’s argument notwithstanding, the ALJ’s order reflects the ALJ recalled the claimant’s testimony, but the ALJ did not find it credible. (Finding of Fact 16). Moreover, a transcript of the hearing was provided to the ALJ prior to completion of the briefing schedule, and through her brief the claimant was afforded an opportunity to point out those portions of her testimony which she considered relevant. Nevertheless, the ALJ declined to enter a supplemental order and elected to transmit the file for review of the claimant’s arguments. Section 8-43-301(4), C.R.S. 2001. Under these circumstances, the claimant was afforded an opportunity to present evidence and make argument to the ALJ, and the ALJ was implicitly unpersuaded by the claimant’s testimony as evidenced by the decision to transmit the matter for review. Thus, there was no prejudice to the claimant even if the initial delay could be construed as a due process violation.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 2, 2001, 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, 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 December 17, 2001 to the following parties:
Pauline Rivera, 583 S. Joplin St., Aurora, CO 80017
Dobbs International Services, Inc., 27280 E. 75th Ave., Denver, CO 80249-6375
Madelyn Sellers, Dobbs International Services, Inc., Clark Tower Building, 5100 Poplar Ave., Memphis, TN 38137
Irma Acevedo, Liberty Mutual Insurance Company, P. O. Box 3539, Englewood, CO 80155
Dalila Gill, Liberty Mutual Insurance Company, 2100 Walnut Hill Ln., #100, Irving, TX 75038
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy