W.C. No. 4-403-008Industrial Claim Appeals Office.
October 15, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied his request for medical benefits. The claimant argues the evidence compelled the ALJ to find a gymnasium membership is reasonable and necessary medical treatment. We affirm.
The claimant sustained a compensable back injury in November 1998. After a lengthy course of treatment which included SI joint injections, the claimant was placed at maximum medical improvement (MMI) by a Division-sponsored independent medical examination (DIME) physician on May 10, 2001.
The claimant filed an application for hearing seeking an order requiring the respondents to pay for a gymnasium membership as a form of ongoing medical benefit under Grover v. Industrial Commission, 759 P.2d 705
(Colo.App. 1988). However, implicitly crediting the May 3, 2002 report of Dr. Byrne, a treating physician, that a gymnasium membership would “yield no significant nor lasting benefit,” the ALJ denied the request. The ALJ explicitly rejected the conflicting opinion of Dr. Finn, another treating physician, because it was issued more than one year prior to MMI.
On review, the claimant argues the ALJ should have credited Dr. Finn’s opinion because Dr. Byrne referred the claimant to Dr. Finn. We find no error.
The respondents may be ordered to provide ongoing medical treatment if there is substantial evidence that treatment is reasonably necessary to relieve the claimant from the ongoing effects of the injury. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701
(Colo.App. 1999). Of course, the claimant has the burden of proof to establish the reasonableness and necessity for treatment. Section 8-43-201, C.R.S. 2002. The question of whether the claimant proved that a particular treatment is reasonably necessary to relieve the effects of the injury is one of fact for determination by the ALJ. See Kroupa v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA2088, July 18, 2002).
Because the issue is one of fact we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Kroupa v. Industrial Claim Appeals Office, supra.
The claimant’s argument notwithstanding, substantial evidence supports the ALJ’s determination that the claimant failed to prove entitlement to the gymnasium membership. The ALJ plausibly rejected the report of Dr. Finn since it was issued more than a year prior to the date the claimant reached MMI. Moreover, the report of Dr. Byrne, issued almost contemporaneously with MMI, indicates a gymnasium membership would not likely provide any benefit to the claimant. Dr. Byrne also noted the claimant was instructed in a home exercise program and provided a “Swiss ball” to carry out the program. Although there was conflicting evidence, we may not substitute our judgment for that of the ALJ concerning the inferences to be drawn from this record. Kroupa v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 29, 2002, 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. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 15, 2002 to the following parties:
Louie A. Romero, 3009 Illinois Ave., Apt. 41, Colorado Springs, CO 80907
USA Waste, c/o Bruce Claybaugh, Waste Management of Colorado, Inc., 80 E. Chambers St., Colorado Springs, CO 80907
Insurance Company of the State of Pennsylvania, c/o Carol Keim, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Matthew C. Hailey, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: _____A. Hurtado_____