W.C. Nos. 4-536-455 4-539-125.Industrial Claim Appeals Office.
October 16, 2003.
FINAL ORDER
In these consolidated workers’ compensation cases, the claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied her claim for medical benefits and a change of physician. The claimant argues the employer, USAA, and its workers’ compensation insurer, Hartford Casualty Company (Hartford respondents), are bound by an admission of liability insofar as it concerns causation. We affirm.
On May 30, 1996, the claimant sustained a right ankle injury while employed by USAA. At the time of the injury USAA was insured by Hartford. The claim for this injury was assigned W.C. No. 4-536-455.
In early 1997 the claimant was diagnosed with fibromyalgia which is characterized by generalized muscle pain throughout the body. Hartford referred the claimant to Dr. Tyler for treatment, and he prescribed various modalities including physical therapy, massage, and psychological treatment. On October 22, 1997, Dr. Tyler placed the claimant at maximum medical improvement (MMI) for the injury. Dr. Tyler noted the claimant was pain free and he found no permanent impairment.
Following Dr. Tyler’s release, the claimant experienced periodic flare-ups of fibromyalgia and was treated by Dr. Lynn, a rheumatologist. From 1997 to 2002 the claimant charged Dr. Lynn’s treatment to her personal health insurance.
In 2002 the claimant again experienced a flare-up of fybromyalgia symptoms. The claimant filed a report of injury alleging that the fibromyalgia was caused by the May 1996 injury. The claimant also alleged that the conditions of her employment at USAA, which required extensive sitting, caused the flare-up and filed a new claim listing the date of injury as March 27, 2002. By this time respondent Federal Insurance Company was USAA’s insurer. The new claim was assigned W.C. No. 4-539-125.
On April 8, 2002, the Hartford respondents filed a final admission of liability (FAL) concerning the 1996 injury. The FAL admitted for medical benefits only and listed the dates of MMI as October 15, 1997, and October 22, 1997. Attached to the FAL was a February 10, 1998 report from the claimant’s psychologist stating the claimant was released from treatment on October 15, 1997, and Dr. Tyler’s report of October 22, 1997. The claimant timely objected to the FAL.
The claim proceeded to hearing on the claimant’s request for a determination of compensability and medical benefits in the 2002 claim, the claimant’s entitlement to medical benefits based on the 1996 injury, and the claimant’s request for a change in the treating physician. The claimant argued, among other things, that by filing the FAL with the attachments the Hartford respondents had admitted that the fibromyalgia was caused by the 1996 injury and that Hartford was improperly seeking to withdraw the FAL.
However, the ALJ concluded the FAL did not bar the Hartford respondents from contesting the cause of the fibromyalgia and consequent need for treatment. The ALJ reasoned that the FAL was silent concerning the cause of the fibromyalgia and the claimant still had the burden of proof on the issue. Then, relying principally on the testimony and reports of the claimant’s treating rheumatologist, the ALJ found the claimant failed to prove that the claimant’s fybromyalgia is causally related to the May 1996 industrial injury or to the conditions of the claimant’s employment. Consequently, the ALJ denied and dismissed the 2002 claim and denied the request for additional medical benefits in the 1996 case. The issue of change of physician was rendered moot.
The only issue raised in the claimant’s brief is the contention that because the reports of the psychologist and Dr. Tyler were attached to the FAL, the ALJ erred in holding that Hartford respondents could contest the cause of the need for treatment of the claimant’s fibromyalgia. Although the claimant cites no legal authority in support of this proposition, the claimant reasons that the Hartford respondents must have admitted liability for the fibromyalgia because neither the psychologist nor Dr. Tyler ever treated the claimant for right ankle problems. Rather, their treatment was associated with fibromyalgia. The claimant asserts the Hartford respondents may not “withdraw” the FAL. We are not persuaded.
Because the claimant’s injury occurred in 1991, the effect of an FAL is controlled by the law as it existed before the 1998 amendments to § 8-43-203(2)(b)(II), C.R.S. 2002. Under the law applicable to this claim the claimant had sixty days to object to the FAL, and if no objection was filed the case was closed as to the issues admitted in the FAL. See 1998 Colo. Sess. Laws, ch. 313, sections 3 and 5, pp. 1431-1432; Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). If the claim had been closed by the FAL and the claimant was seeking to reopen, the claimant’s theory concerning the effect of the FAL on the causation issue might arguably have merit. See City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162
(Colo.App. 2002) (after claim is closed causation issue is limited to whether there is a change in the claimant’s physical condition that can be causally connected to the original compensable injury, not whether any injury occurred in the first instance). The statute itself provides that if a “final admission is predicated upon medical reports, such reports shall accompany the final admission.” However, we need not reach this question.
It is undisputed the claimant filed a timely objection to the Hartford respondents’ FAL. Under these circumstances, the issues related to the claimant’s medical treatment, including the issue of causation, were not closed but remained open and subject to dispute before the ALJ. See Fausnacht v. Inflated Dough, Inc.,
W.C. No. 4-160-133 (July 20, 1999), aff’d. Fausnacht v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1499, May 4, 2000) (not selected for publication) (when claimant contested FAL based on treating physician’s impairment rating, respondents could withdraw FAL and rely on DIME physician’s rating). Because the issue of causation was not closed, the Hartford respondents were free to seek prospective withdrawal of the FAL and contest their liability for medical benefits in excess of those already admitted and paid. See Pacesetter Corp. v. Collett, 33 P.3d 1230
(Colo.App. 2001) (when admission of liability is contested the matter placed in issue is subject to determination by ALJ) Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997) (general admission for medical benefits does not constitute an admission that all subsequent treatment is causally related to the injury, and respondents may dispute the causation issue based on subsequent medical reports). Thus, the Hartford respondents were not bound by the FAL or by the medical reports attached to it.
The claimant’s petition to review also appears to raise the issue of whether the evidence is sufficient to support the ALJ’s findings on causation. To the extent the claimant still maintains this position, we disagree.
Causation is an issue of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. This is a narrow standard of review which requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Here, the medical reports and testimony of Dr. Lynn and Dr. Ridings support the ALJ’s finding that the claimant failed to prove a compensable injury in the 2002 claim, or that the 1996 injury caused the need for treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 14, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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 October 16, 2003 by A. Hurtado.
Donna Sanders, 8980 Melbourne Dr., Colorado Springs, CO 80920
Management, USAA Group, 1855 Telstar Dr., Colorado Springs, CO 80920
Federal Insurance Company, c/o Scott Danfelser, Chubb Group of Insurance Companies, 9155 E. Nichols, #100, Englewood, CO 80112
Hartford Casualty Company, c/o Laurie Iverson, ITT Specialty Risk Services, 110 Woodland Pl., Park City, UT 84098
Steven R. Waldmann, Esq., 331 N. Circle Dr., #201, Colorado Springs, CO 80909-6255 (For Claimant)
Katherine Markheim Lee, Esq. and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents USAA Group and Federal Insurance Company)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents USAA Group and Hartford Casualty Company)