W.C. No. 4-721-918.Industrial Claim Appeals Office.
August 25, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 10, 2008, that ordered the respondents to pay for Grover medical benefits in the form of a surgery to correct the claimant’s leg length discrepancy. We affirm.
A hearing was held on the issue of whether the respondents were liable for surgery to correct the discrepancy in the length of the claimant’s legs. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On April 18, 2007, the claimant fractured her left leg in a compensable accident, and underwent surgery to repair the fracture. She suffered from a preexisting discrepancy of the length of her legs equal to 5/8 inches, and after the surgery her left leg was 1.5 inches shorter than her right. Dr. Walsh determined that the claimant reached maximum medical improvement on October 8, 2007, and recommended that she continue her home exercise program and use medication for pain control. He stated that he anticipated that the claimant would need “maintenance care” in the form of medication and “intermittent orthopedic followup.” On October 24, 2007, the insurer filed a final admission of liability, admitting for permanent partial disability benefits and medical benefits “to maintain MMI.” Since reaching maximum medical improvement, the claimant has fallen three times and has experienced increased pain and instability. On November 6, 2007, Dr. Tauber examined the claimant and recommended that she obtain information regarding possible surgical correction of her leg length discrepancy. On February 4, 2008, Dr. Hahn examined the claimant and recommended that she undergo surgery either
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to lengthen her left leg or shorten the right. The ALJ found that the surgery was reasonably necessary to relieve the effects of the claimant’s compensable injury.
Based upon his factual findings, the ALJ concluded that Dr. Walsh’s determination of maximum medical improvement was not ambiguous and that there was no “internal conflict” in his opinion. Accordingly, the ALJ determined that the claimant remained at maximum medical improvement. However, the ALJ also concluded that the respondents were liable for the surgery under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) in order to relieve the claimant from the effects of the injury.
The respondents appealed the ALJ’s order and make two interrelated arguments. First, they argue that the claimant’s sole means of obtaining the surgery was to challenge Dr. Walsh’s opinion that the claimant had reached maximum medical improvement. And, second, they argue that this particular surgery cannot be a medical benefit under Grover v. Industrial Commission. We are unpersuaded by the respondents’ arguments.
Here, we first address the respondents’ second argument because our resolution of it renders it unnecessary for us to address their first argument.
In Grover v. Industrial Commission the Colorado Supreme Court declined “to engraft on to the statutory scheme a substantial limitation on medical benefits when no such limitation is set forth in the Act itself.”Id., 759 P.2d at 710. The court therefore construed the Act as permitting an ALJ to order payment of medical expenses “reasonably necessary to relieve the claimant from the effects of the industrial injury” even though the treatment is rendered subsequent to an award of permanent disability benefits. Id. In order to support an award of medical benefits following maximum medical improvement, there therefore must be substantial evidence that the medical treatment is reasonably necessary to relieve the effects of the industrial injury or prevent future deterioration of the claimant’s work-related condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). In the usual case involving Grover medical benefits, the claimant is entitled to a general award of future medical benefits upon a showing of the probability of a need for future medical treatment, and the general order then “is subject to the employer’s right to contest compensability, reasonableness or necessity.” Hanna v. Print Expediters, Inc., 77 P.3d 863 (Colo.App. 2003). The court of appeals has stated that “if the evidence in a particular case establishes that, but for a particular course of medical treatment, a claimant’s condition can reasonably be expected to deteriorate, so that he will suffer a greater disability than he has sustained thus far, such medical treatment, irrespective of its nature, must be looked upon as treatment designed to relieve the effects of the injury or prevent deterioration of the claimant’s present condition.” Milco Construction v. Cowan,
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860 P.2d 539, 542 (Colo.App. 1992) (emphasis added). We infer from the court’s statement in this respect that it is not the nature of the proposed medical treatment that determines whether it satisfies the conditions of Grover. Rather, it is merely necessary that the treatment be for the purposes authorized by the court in Grover. As noted, the court in that case held that medical benefits after maximum medical improvement could be ordered if “reasonably necessary to relieve the claimant from the effects of the industrial injury.”
The determination whether a particular treatment is a reasonable and necessary Grover-type medical benefit is one of fact for resolution by the ALJ. Therefore, we may not disturb the ALJ’s resolution of that question if it is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984). “Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 1995). In applying the substantial evidence test on review, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence, nor may we generally disturb his credibility determinations. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here, we are unpersuaded by the respondents’ argument that the disputed surgery cannot be a Grover-type medical benefit because it is undisputedly intended to “cure” the claimant’s leg length discrepancy. It is apparently not contested that the claimant’s compensable injury increased the discrepancy of her leg lengths. In any event, Jacob Tauber, M.D. examined the claimant after her attainment of maximum medical improvement, and noted that her leg length discrepancy had caused her “significant problems in functioning.” Claimant’s Exhibit 3 at 4. The claimant testified that since her fracture had “healed” she was “still experiencing a lot of pain” and that the increased shortening of her left leg had caused “[b]alance and gait problems, problems with being able to stay on [her] feet . . .” Tr. at 16-17. She further testified that the lift she wore in order to correct the shortened leg “creates even more problems” most notably problems with her balance that caused her to fall. Tr. at 17-19. Further, the ALJ expressly credited the claimant’s testimony that the difference in her leg lengths had caused her to fall three times since she reached maximum medical improvement. Tr. at 20. The ALJ’s factual findings concerning the residual effects of the claimant’s leg length discrepancy are supported by ample evidence in the form of the lay testimony and medical reports in the record. More importantly, in our view, it is also a reasonable inference that the disputed surgery was intended to “relieve” the claimant from those residual effects. In this regard,
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we perceive little distinction in the respective purposes of the surgery and the leg lift the claimant used to make the lengths of her legs equal. Both are intended solely to reduce the difference in the lengths of the claimant’s legs. Of course, the means used to achieve that end are different. The leg lift is an artificial prosthetic device and the surgery is intended to create a permanent anatomical correction of the problem. However, as previously noted, whether a particular medical treatment may be a Grover-type benefit depends not as much on the “nature” of the treatment as on the purpose it is meant to achieve. In this case, both the leg lifts and the surgery are designed to achieve the same end and we do not disagree with the ALJ’s conclusion that that goal is to relieve the claimant from the effects of the injury. Accordingly, we perceive no error in his ruling that the surgery is a Grover-type medical benefit.
As noted, because we have determined that the disputed surgery may be characterized as a medical benefit under Grover v. Industrial Commission
and because we affirm the ALJ’s conclusion in that regard, it is unnecessary for us to address the respondents’ argument that the sole means of obtaining the surgery was to challenge Dr. Walsh’s determination of maximum medical improvement. That argument depends upon the premise that the surgery may not be a Grover medical benefit. Our decision to the contrary renders the respondents’ further arguments moot and we need not address them.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 10, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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KRISTINE SHIPMAN, 2222 E 8TH STREET, CO, (Claimant)
LARRY’S TRANSMISSION CENTER, CO, (Employer) FEDERATED MUTUAL INSURANCE CO., Attn: MARY J. ROCHE, MO, (Insurer)
STEPHEN M. JOHNSTON, ESQ., Attn: KONCILJA KONCILJA, PC, PUEBLO, CO, (For Claimant)
MARK H. DUMM, ESQ., Attn: NATHAN, BREMER, DUMM MYERS, PC, DENVER, CO, (For Respondents)
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