W. C. Nos. 4-419-470, 4-419-470.Industrial Claim Appeals Office.
March 15, 2007.
FINAL ORDER
Both parties seek review of an order of Administrative Law Judge Mattoon (ALJ) dated October 12, 2006 that denied the claimant’s petition to reopen and denied the claimant’s claim for medical benefits and for temporary total disability benefits. We dismiss the respondents’ petition to review without prejudice and we otherwise affirm.
A hearing was held on the issues of the claimant’s petition to reopen based upon a worsened condition, and the respondents’ liability for medical benefits and for temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant injured her low back on April 12, 1999 and received medical treatment from Dr. Sparr, which included lumbar facet radiofrequency neurotomies (referred to in the order as “RF procedures.”) The claimant reached maximum medical improvement and the respondents filed a final admission of liability, admitting for, among other things, medical benefits after maximum medical improvement. The claimant did not object to the final admission. She filed a petition to reopen on April 27, 2006, which was more than six years after the date of injury and more than two years after the last payment of temporary total disability benefits or permanent disability benefits. The claimant has continued to receive medical treatment from Dr. Sparr, including physical therapy, medications, injections, and three RF procedures. The claimant suffered a “significant flare-up” of her back condition on March 17, 2006, and was unable to work for five months. On April 10, 2006, Dr. Sparr referred her to Dr. Laub for an RF procedure to treat her increased back pain. Although the respondents initially denied the
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requested treatment, authorization for it was eventually given on June 28, 2006. By that time, however, the claimant’s increased symptoms had abated following a long course of physical therapy, and Dr. Sparr determined that the RF procedure was no longer necessary. The ALJ credited Dr. Sparr’s testimony that in the event the claimant experienced flare-ups of her back pain in the future, the RF procedure should be promptly provided. The ALJ also found that the claimant’s condition had not worsened.
Based upon her factual findings, the ALJ denied the claimant’s request for an order that the respondents should have authorized the RF procedure at the time it was recommended, and for an order requiring the respondents to provide that treatment should it become necessary in the future. The ALJ also denied the claimant’s petition to reopen based upon a worsened condition and accordingly also denied the request for temporary total disability benefits.
Both parties appealed the ALJ’s order. The claimant argues that the ALJ erred in failing to award future medical benefits in the form of the RF procedures and in denying her petition to reopen. The respondents argue that the ALJ erred in refusing to address the issue of the ripeness of the claimant’s claims. We are unpersuaded that the ALJ erred and therefore we affirm the order.
I. A.
The claimant first argues that the ALJ erred in refusing to order the RF procedures “prospectively,” in the event the claimant suffers a relapse or “flare up” of her condition. In support of her argument she notes Dr. Sparr’s testimony, which was credited by the ALJ, that such flare ups are likely to occur and that when they do the RF procedures are a reasonable and necessary treatment to relieve them. However, the ALJ did not err in refusing to enter the order sought.
The ALJ correctly recognized that a claimant may be entitled to continuing medical benefits after maximum medical improvement if the record contains substantial evidence that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the compensable injury. See Grover v. Industrial Commision, 759 P.2d 705, 711 (Colo. 1988). The ALJ also recognized that an award of medical benefits pursuant to Grover should be a “general order” subject to the respondents’ right to challenge the reasonableness and necessity of particular treatment. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); McClure v. Wal-Mart, W.C. No. 4-651-991 (March 2, 2007); McCormick v. Exempla Healthcare, W.C. No. 4-594-683 (January 27, 2006); Azar v. Mervyn’s, W.C. No. 4-354-936 (June 9, 2005).
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Here, she properly declined to enter the requested order because it would have been purely advisory in nature. The order would necessarily have been based upon speculation, since it would only have taken effect in the event the claimant suffered a flare up of her condition that was properly treated by the RF procedure ordered. Because the ALJ could not possibly enter a factual finding that such an eventuality was going to occur, she properly declined to order benefits based upon that eventuality. Section 8-43-201, C.R.S. 2006 provides that ALJs have original jurisdiction to hear and decide all matters arising under articles 40 to 47 of title 8, and refers in its title to “disputes” arising under the Act. We have concluded that this language restricts ALJs from issuing advisory opinions that do not involve any actual controversy between the litigants. See Plitz v. Quality Mitsubishi, W.C. No. 4-351-844 (December 20, 2001). Here the ALJ correctly declined to order the RF procedures to be provided contingent upon the occurrence of a set of conditions that might or might not be satisfied in the future. We understand the claimant’s argument that part of her motivation in seeking the order was that the efficacy of the RF procedures depends upon the treatment being provided quickly when needed, and that a delay can render the treatment ineffective or even unnecessary. However, those circumstances, although compelling, do not confer upon the ALJ jurisdiction to enter an advisory order contingent upon the occurrence of uncertain future events.
B.
The claimant also argues that the ALJ erred in denying her petition to reopen and in denying temporary total disability benefits. We disagree.
The claimant concedes that her entitlement to temporary total disability benefits between March 17 and August 21, 2006 requires that the issue be reopened pursuant to § 8-43-303, C.R.S. 2006. She further concedes that her petition to reopen was not timely filed under that statute, and that she “is precluded from recovery of temporary disability benefits for the time period in question.” Claimant’s Opening Brief in Support of Petition to Review at 8. However, the claimant notes that this case involves the “unique” circumstances that the respondents’ alleged failure to authorize the RF procedures in April 2006 was the cause of the claimant’s temporary disability. She argues therefore that an exception should be created permitting reopening and an award of temporary total disability benefit for the period of disability caused by the delay created by respondents’ refusal to authorize the medical treatment.
However, we have no authority to create such an exception to the reopening statute. It is true that the statutes of limitations set forth in § 8-43-303 are subject to equitable tolling under certain circumstances. See Garrett v. Arrowhead Improvement Association,
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826 P.2d 850 (Colo. 1992). Here, however, even assuming that the doctrine was raised at the hearing, the burden was on the claimant to establish the factual foundation for equitably tolling the statute of limitations in § 8-43-303. In our view, the claimant has provided no satisfactory basis to trigger equitable tolling of the statute of limitations and we agree with the ALJ (and with the claimant’s concession) that she was time-barred from reopening the claim to permit payment of temporary total disability benefits.
Moreover, in any event, the ALJ also found that the claimant’s condition had not worsened so as to permit reopening. When seeking to reopen based on a change in condition, the claimant must prove a change in the condition of the original compensable injury or a change in the claimant’s physical or mental condition which can be causally connected to the original injury. Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985). Because the power to reopen is discretionary, we may not interfere with the ALJ’s determination of the issue unless there has been fraud or a clear abuse of discretion. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). Moreover, we must uphold the ALJ’s findings of fact if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, Dr. Sparr’s testimony, which the ALJ credited as persuasive, provides ample evidence supporting the ALJ’s finding that the claimant’s condition had not worsened. Dr. Sparr testified that the claimant’s condition was “as stable as it has been in the past,” and that, although she might experience temporary aggravations, she returns to “baseline and stability” following those. Tr. at 75-76. He further testified that he did not see the necessity of a functional capacity examination because he believed that “her range of motion would be as good or better than it was at the time that we initially measured her.” Tr. at 82. Finally, Dr. Sparr opined that the claimant remained at maximum medical improvement. Tr. at 82. Despite the existence in the record from which the ALJ could reasonably have drawn contrary inferences, Dr. Sparr’s testimony supports her finding that that the claimant’s condition had not worsened.
C.
Finally, the claimant argues that the respondents violated Workers’ Compensation Rule of Procedure 16-10, setting forth procedures required for contesting prior authorization
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of requested medical treatment. The claimant argues that under Rule 16-10(E) the respondents’ failure to comply with the prior authorization procedures should have resulted in the authorization of the requested treatment, and she seeks an order to that effect. However, inasmuch as the respondent failed to raise this argument before the ALJ in a timely manner, we decline to address it on review. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986).
II.
The respondents argue that the ALJ erred in failing to determine whether the claimant’s claims were ripe for adjudication. On appeal the respondents cite § 8-43-211(2)(d), C.R.S. 2006, which provides that if a person requests a hearing on an issue which is not ripe, “such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting.” And the relief they now request is a remand to the ALJ for determination of the issue of ripeness “pursuant to C.R.S. § 8-43-211.” Brief in Support of Petition to Review at 3 (unpaginated). However, we are unable to locate any point in the rather extended discussion regarding “ripeness” at the commencement of the hearing at which the respondents asserted the right to attorney fees under § 8-43-211. Indeed, the thrust of the respondents’ position was that the hearing was unnecessary and should not proceed because the medical treatment had been authorized and therefore the issue was not ripe. However, at no point did the respondents request an award of attorney fees pursuant to the statute. Accordingly, we conclude that insofar as the ALJ failed to make a determination regarding the ripeness of the claimant’s claims the order in that respect was not final and is not presently reviewable.
Under § 8-43-301(2), C.R.S. 2006, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989) Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory); CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986).
Under the circumstances of this case, where the respondents merely asserted at the commencement of the hearing that the issues were not ripe, we presume that the ALJ considered it unnecessary to resolve that issue where she denied the claimant all requested relief. In any event, her order in this respect is not final and accordingly we dismiss the respondents’ petition to review.
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IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated October 12, 2006 is dismissed without prejudice, and
IT IS THEREFORE FURTHER ORDERED that the ALJ=s order dated October 12, 2006, is in all other respects affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant.
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Fireman’s Fund Insurance Company, Stacey McGuire, P.O. Box 13340, Sacramento, CA 95813
Steven U. Mullens, P.C., Monica J. Gomez, Esq., 105 East Moreno Ave., Colorado Springs, CO 80901-2940 (For Claimant)
Dworkin, Chambers Williams, P.C., David J. Dworkin, Esq., 3900 E. Mexico Ave., Suite 1300, Denver, CO 80210-3953 (For Respondents)
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