W.C. No. 4-797-103.Industrial Claim Appeals Office.
November 7, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Bruce C. Friend (ALJ) dated May 25, 2011, which determined that the respondents were not liable for the cost of surgery. We affirm the ALJ’s order and deny the respondents’ request for attorney fees under § 8-43-301(14), C.R.S.
This matter went to hearing to determine whether the respondents were liable for a cervical surgery performed by Dr. Choi. After hearing the ALJ entered findings of fact which for purposes of review can be summarized as follows. On March 31, 2009, the claimant went to Auto Trim Specialists to get an estimate on a repair for the employer. The claimant entered the building through a garage door that opened manually. When the claimant opened the garage door and stepped into the shop, the door came back down and hit him on the head. The claimant did not fall down and did not lose consciousness, nor did he sustain any lacerations or bruises. However, following the accident the claimant was dizzy, had headaches and cognitive problems and his neck was sore.
The claimant was initially treated by PA-C Lisa Kellar on April 3, 2009. Ms. Kellar did not observe any lacerations, contusions or swelling to the claimant’s skull. Diagnostic tests were negative for fractures to the claimant’s cervical spine and skull. However, the tests did show that the claimant had degenerative disc disease in his cervical spine. Ms. Kellar referred the claimant to a neurosurgeon, Dr. Van Sickle. Dr. Van Sickle
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saw the claimant in April, 2009 and found no evidence of trauma to the cervical spine. Dr. Van Sickle diagnosed the claimant with degenerative disc disease. Dr. Van Sickle did not recommend surgery, concluding that it was unlikely the claimant was a surgical candidate. Dr. McNutt saw the claimant for ongoing headaches and concurred with Dr. Van Sickle’s opinion that the claimant was not a surgical candidate for his neck. Dr. McNutt referred the claimant to Dr. Peragrine for treatment to his neck. The claimant saw Dr. Peragine in June, 2009. Dr. Peragrine treated the claimant with a series of injections for the cervical degenerative disc disease.
The claimant then began seeing Dr. Castro in November, 2009, who referred the claimant to Dr. Choi for a surgical consult. Dr. Choi saw the claimant in January, 2010. Dr. Choi did not recommend surgery at that time. Dr. Choi did a repeat MRI on October 12, 2010, and noted that the MRI was consistent with the findings of the April 30, 2009, MRI, and still showed degenerative changes. Based on the findings and the claimant’s complaints, Dr. Choi recommended a fusion at the C5-7 levels to treat the degenerative disc disease. The respondents denied the requested surgery. The claimant’s private health insurance authorized the surgery for the diagnosis of stenosis. The claimant had the surgery on November 16, 2010. The surgical report confirmed the findings that the claimant had only degenerative changes.
At the respondents’ request, Dr. Scott performed a medical review of the claimant’s records on March 29, 2010. Dr. Scott noted that there was no indication of an acute injury to either the claimant’s head or neck. In Dr. Scott’s opinion, the claimant’s neck condition was chronic and pre-existing and he was skeptical if the mechanism of injury described by the claimant was plausible.
The claimant saw Dr. Douthit on December 13, 2010, for an independent medical examination (IME) at the respondents’ request. Dr. Douthit noted that Dr. Choi failed to perform a history of the claimant and that the pre-surgical diagnosis was degenerative changes. In Dr. Douthit’s opinion the claimant’s cognitive issues should have been a sign of symptom magnification and his ultimate conclusion was that the surgery was not related to the industrial accident but rather, related to the claimant’s arthritis and psychological overlay.
The ALJ found the opinion of Dr. Scott to be credible and persuasive. Specifically, the ALJ found that Dr. Scott’s conclusion that the degenerative disc disease was not related to the industrial accident was supported by the facts of the accident as well as the medical records. ALJ Order at 7 ¶ 36. The ALJ also found Dr. Douthit’s opinion that the surgery was not reasonable and necessary to be credible and persuasive. ALJ Order at 8 ¶ 40.
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Based on the opinions of Dr. Scott and Dr. Douthit, the ALJ held that the respondents were not liable for the costs of the November 16, 2010, surgery. The ALJ reasoned that the November 16, 2010, surgery was not reasonable and necessary to cure and relieve the claimant from the March 31, 2009, injury in light of the evident pre-existing degenerative disc disease, the inconsistencies of the claimant’s reporting his prior medical history and the lack of any sign of an acute injury. The claimant now appeals the ALJ’s Order.
I.
Initially, the respondents argue that the claimant’s brief exceeds the 20 page limit set forth in Office of Administrative Courts Rule of Procedure (OACRP) 26(E), and, therefore, should be stricken. The respondents also contend that the claimant has submitted numerous medical reports and documents that were not part of the record before the ALJ and that these documents should also be stricken. We disagree with the respondents that the brief should be stricken. However, we do agree with the respondents’ argument concerning the exhibits and medical documentation submitted after hearing.
On August 18, 2011, the claimant submitted a document in a three-ring binder containing a 21 page, “Petition to Review Brief” along with the exhibits referenced in that brief. The claimant also submitted a bound document containing several hundred pages of medical reports and other documentation. Although the claimant did not request permission to exceed the brief limit set forth in OACRP 26(E), we do not find that it is necessary to strike the 21 page document entitled “Petition to Review Brief.” Given the voluminous medical records and factual disputes at issue, we determine that the claimant’s failure to adhere to the 20 page limit in this regard is not unreasonable. See People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (in its discretion, a court may grant permission to file an oversize brief).
However, we do not consider the attached exhibits or the bound documents submitted by the claimant after the hearing which were not part of the record before the ALJ. Our review is restricted to the record before the ALJ, and the exhibits and factual assertions made on appeal by the claimant may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995) (appellate review limited to the record before the ALJ); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo. App. 1988).
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II.
On appeal the claimant contends that the ALJ erred in his determination that the respondents are not liable for the cervical surgery. We are not persuaded that the ALJ committed reversible error.
Section 8-42-101(1)(a), C.R.S., provides that the respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188 (Colo. App. 2002). The question of whether medical treatment is reasonable and necessary is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). The ALJ’s determinations in this regard must be upheld if supported by substantial evidence. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002). Section 8-43-301(8), C.R.S. The existence of evidence which, if credited, might permit a contrary result affords no basis for relief on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
As stated by the claimant, the respondents are liable if employment-related activities aggravate, accelerate, or combine with a pre-existing condition to cause a need for medical treatment. Section 8-41-301(1)(c), C.R.S.; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). However, although pain may be a typical symptom from the aggravation of a pre-existing condition, a claimant is entitled to medical benefits for treatment of pain, only so long as the pain is proximately caused by the employment-related activities and not the underlying pre-existing condition. The mere onset of pain symptoms does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Resolution of that issue is also one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
Here, the ALJ found that the November 16, 2010, surgery was not reasonable and necessary to cure and relieve the claimant from the March 31, 2009, injury in light of the evident pre-existing degenerative disc disease, the inconsistencies of the claimant’s reporting his prior medical history and the lack of any sign of an acute injury. ALJ Order at 10 ¶ 2. Substantial evidence supports the ALJ’s findings and we may not disturb those findings on review. Section 8-43-301(8), C.R.S.
Various medical reports submitted into evidence note the existence of the claimant’s degenerative disc disease and the lack of signs of an acute injury, following
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the March 31, 2009 injury. Respondents’ Exhibits at B-1, C-1, D-1, K-1, O-1. Similarly, a number of providers noted in their reports, the claimant’s inconsistent reporting of his medical history concerning pre-existing psychological issues and drug abuse. Respondents’ Exhibits at P-1, G-1, K-1, O-1. In fact, Dr. Choi who performed the surgery, testified that he was not aware of the full extent of the claimant’s psychiatric history or drug abuse. Dr. Choi depo. at 7.
The ALJ specifically relied on the opinions of Dr. Scott and Dr. Douthit to support his determinations that the claimant’s degenerative disc disease was not related to the industrial accident and that the November 16, 2010, surgery was not reasonable and necessary. ALJ Order at 7 ¶ 36 and 8 ¶ 40. In his report dated April 22, 2010, Dr. Scott summarized the claimant’s prior medical reports and concluded that the claimant’s symptoms were subjective and there was no evidence of a “physical injury of his head, neck or cranial vault on April 3, 2009.” In Dr. Scott’s opinion, the claimant’s complaints were related to other medical or psychological problems and not the March 31, 2009, incident. At hearing, Dr. Scott testified that in his review of the medical records there was no evidence of an acute injury to the head or to the neck. Tr. at 86. Dr. Scott also testified that he had questions about the reasonableness of the November 16, 2010, surgery because the claimant was not evaluated in terms of his psychiatric history and the surgery may have been performed based on the claimant’s complaints rather than diagnostic findings. Tr. at 96-97.
Dr. Douthit also reviewed the claimant’s prior medical records and in his December 13, 2010, report he notes that the claimant’s primary problems are cognitive problems and depression. Dr. Douthit also notes that there were marginal indications for the surgery, as the claimant did have degenerative disc disease of the cervical spine, but his depression and cognitive issues should have been a warning that his pain issues were being magnified. Dr. Douthit stated that in performing the surgery, it appears that Dr. Choi was responding to the claimant’s complaints of neck pain as an indicator for surgery. In Dr. Douthit’s opinion, Dr. Choi ignored the warning signs of the claimant’s depression and other psychosocial issues for which he was being treated and possible indicators that the claimant’s pain symptoms were being magnified. Tr. at 116-117.
In his brief, the claimant raises arguments concerning the qualifications and credibility of Dr. Douthit’s and Dr. Scott’s opinions. Specifically, the claimant alleges that the respondents attempted to influence the IME by writing a 4 page letter asking specific questions of Dr. Douthit. Claimant’s Brief at 2. It should be noted that Dr. Douthit performed an IME pursuant to § 8-43-404(1)(a), C.R.S, and not a Division IME where communication is restricted. Section 8-42-107.2, C.R.S.; Rule 11-6(A), 7 Code Colo. Reg. 1101-3. Additionally, the respondents’ letter submitted by the claimant was not presented to the ALJ and, therefore, we are precluded from considering it on review.
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See City of Boulder v. Dinsmore, supra; Voisinet v. Industrial Claim Appeals Office, supra.
The claimant also states that Dr. Scott is “unqualified” to do the IME. However, at hearing, the claimant did not have any objections to Dr. Scott being qualified as an expert. Tr. at 85. In his report and at hearing, Dr. Scott explained the claimant’s confusion surrounding his qualification to perform the IME. Dr. Scott stated that upon learning that the claimant sustained a closed head injury, he recommended to the claimant that he be evaluated by a neurologist, as he was a board certified occupational medicine physician. After further discussion with the respondents, Dr. Scott was asked to comment on the documentation of physical injuries from a review of the medical records and not the neurological component. Tr. at 85-86.
In any event, the claimant’s contentions do not preclude the ALJ from considering the opinions of Dr. Douthit and Dr. Scott. Rather, the claimant’s contentions only go to the weight the ALJ chose to assign to these particular opinions. The weight and credibility to be assigned expert testimony is a matter within the sole discretion of the ALJ and we may not substitute our judgment for that of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
III.
The claimant argues that the respondents are obligated to pay for the cervical surgery because they paid for all of the conservative treatment associated with the March 31, 2009, incident. Claimant’s Brief at 20. However, this fact is not dispositive. Regardless of whether there is an admission for prior medical treatment, a respondent retains the right to dispute whether the need for medical treatment was caused by the compensable injury or whether it was reasonable and necessary. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo. App. 2003) (a general award of future medical benefits is subject to the employer’s right to contest compensability, reasonableness, or necessity); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). The mere admission that an injury occurred and that treatment is needed cannot be construed as a concession that all conditions and treatment that occur after the injury were caused by the injury Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250
(Colo. App. 1990).
The claimant also argues that the respondents did not timely investigate the accident, there is no medical evidence that he had cervical problems prior to the accident, and Dr. Choi’s opinions should be credited over Dr. Scott’s and Dr. Douthit’s opinions. The claimant also makes references to physician opinions in other unrelated workers’ compensation claims as support for his argument that the surgery is compensable. The
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claimant’s arguments essentially ask us to reweigh the evidence to reach a conclusion contrary to the ALJ. To the extent these arguments were raised below, we are not persuaded that there is reversible error. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence that was presented and we decline the claimant’s invitation to do so. Arenas c. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). In our view the ALJ relied on substantial evidence in the record and found that the respondents were not liable for the November 16, 2010, cervical surgery.
IV.
The respondents request attorney fees under § 8-43-301(14), C.R.S., alleging that the claimant filed the petition to review with the intent to harass the respondents. We deny the respondents’ request.
Section 8-43-301(14), C.R.S., allows for an award of attorney fees and costs against an attorney who signs a petition to review or brief in violation of subsection (14). (emphasis added). This subsection does not allow for an award of attorney fees and costs against an individual party. See Stapleton v. United Parcel Service, W.C. No. 4-636-195 (October 18, 2007). Consequently, we conclude that the respondents’ request for attorney fees and costs against the claimant is not authorized under § 8-43-301(14), C.R.S.
Regardless of whether attorney fees can be assessed against a pro se claimant, we decline to award attorney fees here. Although § 8-43-301(14), C.R.S., authorizes an award of attorney fees and costs under certain circumstances, such an award is not appropriate if there is a reasonable basis for the appeal. BCW Enterprises Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997). Here, even though we do not agree with the claimant’s arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 25, 2011, is affirmed and the respondents’ request for attorney fees is denied.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Brandee DeFalco-Galvin
_______________________ Kris Sanko
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BUD FORBES, 1480 E. GIRARD PL., #628A, ENGLEWOOD, CO, (Claimant).
BARBEE’S FREEWAY FORD, 4471 E. EVANS, DENVER, CO, (Employer).
MID-CENTURY INSURANCE COMPANY, Attn: ELIZABETH NEU, C/O: WORKERS’ COMPENSATION BCO — DENVER, OKLAHOMA CITY, OK, (Insurer).
VARNELL ASSOCIATES, Attn: JOE ESPINOSA, ESQ., DENVER, CO, (For Respondents).
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