W.C. No. 3-903-186Industrial Claim Appeals Office.
May 24, 1996
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Rumler (ALJ) which awarded medical benefits. We affirm.
It is undisputed that the claimant suffered a compensable neck injury on May 12, 1988. The parties stipulate that the claimant was subsequently diagnosed with bilateral epicondylitis, which is also work related. However, the parties disagree on whether the epicondylitis is the result of the 1988 injury or a new injury on May 7, 1993.
Crediting the claimant’s testimony and the opinions of Dr. Simpson, the ALJ found that the claimant’s bilateral epicondylitis is a natural and probable consequence of the May 12, 1988 injury. The ALJ also determined that the claimant’s authorized treating physicians, Dr. Kleiner and Dr. Lindenbaum have recommended surgery, specifically right elbow surgery by Dr. Lindenbaum and neck surgery by Dr. Kleiner. Therefore, the ALJ ordered the respondent to provide the surgery by Dr. Kleiner and Dr. Lindenbaum. All other issues were reserved for future determination.
I.
On review, the respondent first contends that the ALJ erred in ordering the respondent to provide the neck surgery because the issue was not ripe for adjudication. In support, the respondent cites Dr. Kleiner’s November 23, 1994 report in which he states that if the claimant’s symptoms persist after the elbow surgery by Dr. Lindebaum, “then a microforaminotomy/laminotomy at C6 bilaterally could be performed.” Consequently, the respondent argues that Dr. Kleiner is not currently recommending neck surgery. The respondent also contends that adjudication of the claimant’s request for neck surgery was premature because the respondent has not received a bill for the surgery, or a request for preauthorization as provided by the Rules of Procedure, Part XVI XVII, 7 Code Colo. Reg. 1101-3 at 70-85 (1995). We reject these arguments.
The respondent’s arguments concerning Rules XVI XVII were not raised before the ALJ. (Tr. p. 16). Accordingly, the argument is not properly before us on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
However, even if the respondent’s argument were properly before us, we would conclude that it is without merit. The record contains a letter dated August 29, 1995, in which the respondent denied preauthorization for the proposed surgery pending the results of an independent medical examination. We also note that at the commencement of the hearing claimant’s counsel specifically stated that the claimant was seeking a court order for the surgery because the respondent had denied authorization, and the respondent did not dispute this assertion. (Tr. pp. 7, 8).
In any case, Rule XVI(J) provides that in the event of a continuing disagreement concerning the reasonableness of a particular treatment, the parties may have the matter adjudicated by the ALJ. Rule XVII(E)(4) entitled “Procedure for Questioning Care” includes a similar clause. Consequently, we conclude that neither Rule XVI nor Rule XVII precluded the ALJ from resolving the claimant’s request for surgery on her neck.
Neither are we persuaded that the ALJ erred in failing to find that the neck surgery is just a “possibility” for future treatment. To the contrary, there is substantial evidence in Dr. Kleiner’s medical reports to indicate that elbow and neck surgeries have both been recommended and have a reasonable prospect of improving the claimant’s condition. See Dr. Kleiner reports November 9, 1994 November 23, 1994. However, the ALJ was persuaded by Dr. Kleiner’s opinion concerning the sequence in which the surgeries should be performed. According to Dr. Kleiner, if the elbow surgery is performed first, it is possible that the neck surgery may not be required. Consequently, we understand the ALJ as having determined that the neck surgery is reasonable and necessary if the claimant’s neck, shoulder and upper extremity symptoms remain after the elbow surgery by Dr. Lindenbaum.
II.
The respondent also contends that the ALJ erred in failing to enter an order on the issue of penalties. We disagree.
Although the claimant’s Application for Hearing endorsed the issue of penalties, at the commencement of the hearing the claimant listed the issues as compensability for the bilateral epicondylitis, authorized treating physician, medical benefits and average weekly wage. (Tr. pp. 11, 13) The respondent did not add any other issues.
Under these circumstances, the parties waived litigation of the penalty issue. Therefore, the ALJ was not required to enter an order resolving the issue, and was free to reserve the matter for future determination.
III.
Lastly, the claimant contends that the respondent’s Petition for Review is “frivolous” and lacks “substantial merit,” and therefore, the claimant requests “such other and further relief as is deemed appropriate.” We interpret the claimant’s request as a motion for an award of costs and attorney fees under § 8-43-301(14), C.R.S. (1995 Cum. Supp.).
However, § 8-43-301(14) was enacted as part of Senate Bill 91-218, and does not apply to injuries incurred prior to July 1, 1991. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Because the ALJ has determined that the claimant’s condition is attributable to the 1988 injury, § 8-43-301(14) is not applicable to this claim. Therefore, we must deny the claimant’s request for attorney fees.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 18, 1995, is affirmed.
IT IS FURTHER ORDERED that the claimant’s request for an award of costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 24, 1996 to the following parties:
Edwin Rodriguez, 5912 W. 75th Pl., Westminster, CO 80003
Kimberly Costin, Public Service Co. of Colorado, P.O. Box 840, Suite 800, Denver, CO 80201-0840
Michael Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
Kenneth R. Lampton, Jr., Esq., 7112 W. Jefferson Ave., Ste. 103, Lakewood, CO 80235 (For the Claimant)
BY: _______________________