W.C. No. 4-364-466Industrial Claim Appeals Office.
September 14, 2001
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his claim for medical benefits after maximum medical improvement (MMI). We affirm.
The claimant sustained a compensable back injury on October 13, 1997, and underwent surgery for a herniated disc on December 10, 1997. Ultimately, the treating physician placed the claimant at MMI on June 16, 1999, with a 16 percent whole person medical impairment rating. At the time of MMI the treating physician stated the following:
“The clinical condition is stabilized and not likely to improve with surgical intervention or active medical treatment: medical maintenance care only is warranted. The degree of impairment is not likely to change by more than 3 % within the next year. Employability is not likely to improve with surgical intervention or active medical treatment. The patient is no [sic] likely to suffer sudden or subtle incapacitation.”
The claimant’s condition stopped improving approximately two months after surgery, and the treating physicians advised the claimant it would take a long-time before he is completely healed. At the time of the hearing the claimant was suffering numbness in his left leg, but was able to “walk and wiggle his left toes.” The claimant testified he does not know what is wrong with his leg or what medical care he requires, but the claimant wants his condition “fixed.”
The ALJ found the claimant failed to meet his burden to prove entitlement to ongoing medical benefits after MMI under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Although the ALJ found the treating physician’s report provided some evidence in support of an award of Grover medical benefits, the ALJ found the report unpersuasive because it does not state “what medical care might be anticipated, what condition it might be relieving, and what effect the care might have” on the claimant’s condition. Further, the report did not state the claimant is likely to deteriorate without “some type of maintenance treatment.” The ALJ also found the claimant’s testimony did not support the claim fo Grover medical benefits because it was focused on an alleged need for treatment to improve the claimant’s condition, and did not identify any treatment falling under the purview Grover. The ALJ specifically noted that she did not have “jurisdiction in the context of this hearing to decide whether or not” the claimant was properly placed at MMI.
The claimant filed a petition to review, but did not file a brief in support of the petition. The petition to review states the claimant proved he is getting worse “from one MMI to the other MMI,” and that the treating physician’s report states medical maintenance care is warranted. The claimant further states that he is “getting worse every month.”
The issue for hearing identified in the claimant’s application for hearing, as well as the ALJ’s order, is the claimant’s entitlement to medical treatment “after maximum medical improvement.” As the ALJ correctly recognized, in order to prove entitlement to Grover medical benefits the claimant was required to present substantial evidence to support a determination that future medical treatment will be reasonably necessary to relieve the claimant from the effects of the injury or to prevent further deterioration of his condition. Grover v. Industrial Commission, supra; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). However, the claimant need not prove that a specific course of treatment is anticipated or articulated. Stollmeyer v. Industrial Claim Appeals Office, supra.
The question of whether the claimant presented substantial evidence justifying an award of Grover medical benefits is one of fact for determination by the ALJ. See Holly Nursing Care Center v. Industrial Claim Appeals Office, 919 P.2d 701 (Colo.App. 1999). Because the issue is 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. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in 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). Moreover, because the claimant failed to procure a transcript of the hearing, we must presume the ALJ’s findings concerning the testimony are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988).
Here, although the treating physician stated that “maintenance care is warranted,” there was no explanation of what types of treatment might reasonably be needed now or in the future to maintain the claimant’s condition. Indeed, there was no explanation of what “condition” would be “maintained” by such treatment. Under these circumstances, the ALJ was not compelled to find the treating physician’s statement constitutes persuasive evidence that the claimant reasonably needs future medical treatment to relieve or prevent deterioration of his condition. Under the circumstances present here, the weight and inferences to be drawn from the treating physician’s statement were issues of fact for the ALJ, and we may not substitute our judgment for hers in this regard.
Moreover, we must presume the ALJ’s findings concerning the claimant’s testimony are supported by the record. The ALJ found the claimant provided no testimony suggesting that medical treatment is reasonably necessary to relieve or maintain his condition. Rather, the claimant’s testimony was directed to whether or not he ever reached MMI, or needs additional treatment to stabilize his condition. Because the claimant did not seek a Division-sponsored independent medical examination (DIME) to challenge the treating physician’s MMI determination, the ALJ correctly held she did not have jurisdiction to consider the claimant’s testimony, and that testimony was not relevant to the issue of Grover medical benefits. Section 8-42-107(8)(b)(III), C.R.S. 2000; Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995).
To the extent the claimant is alleging that his condition is “worsening,” that issue was not before the ALJ. The issue of Grover
medical benefits concerns the claimant’s entitlement to ongoing treatment after MMI. To the extent the claimant now alleges that his condition is worsening, he may file a petition to reopen pursuant to § 8-43-303, C.R.S. 2000. However, the issue of reopening based on a worsened condition was not submitted to the ALJ.
Insofar as the claimant’s petition to review can be interpreted as raising other issues, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 12, 2001, 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, 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. 2000. 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 September 14, 2001 to the following parties:
Duane Shelinbarger, 1596 Garland Rd., Pueblo, CO 81006
Colorado Kenworth, Inc., Chris Parks, Midamerican Holding Co., 1524 N. Corrington Ave., Kansas City, MO 64120
Brian Seigal, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy