W.C. No. 4-825-475.Industrial Claim Appeals Office.
October 19, 2011.
ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated April 29, 2011, that ordered the respondent-insurer to authorize medical treatment for the claimant’s left knee, and that ordered the respondent-insurer to pay temporary total disability benefits (TTD) from October 28, 2010, through December 20, 2010, and temporary partial disability (TPD) benefits from December 21, 2010, and ongoing. We set aside that portion of the ALJ’s order regarding TTD and TPD benefits and remand for further findings on the June 3, 2010, offer of modified employment and its effect, if any, on the claimant’s entitlement to temporary disability benefits. We otherwise affirm the order pertaining to the claimant’s left knee treatment.
The following facts are taken from the record and the ALJ’s order. The claimant sustained an admitted injury on May 14, 2010, when she slipped and fell on water while at work. Immediately after her fall, the claimant was taken to the hospital, where she complained of right shoulder pain. The claimant was diagnosed as suffering a right shoulder dislocation. The claimant received treatment and was discharged.
On May 17, 2010, the claimant sought treatment from Dr. Ogrodnick for pain in her left knee and low back. Dr. Ogrodnick diagnosed the claimant as sustaining work-related right shoulder dislocation, left knee sprain, and lumbar sprain. In his medical report dated May 17, 2010, Dr. Ogrodnick stated that while the claimant was “waiting to be discharged from the ER she found it difficult to stand up and walk because of left knee and lower back pain.” Ex. G at 113. Dr. Ogrodnick took the claimant off of work from
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May 17, 2010, to May 24, 2010. Dr. Ogrodnick reevaluated the claimant on May 24, 2010, and opined that the claimant remained unable to work and referred the claimant for MRIs on her left knee and right shoulder. Exhibit G at 116.
Dr. Ogrodnick then released the claimant to modified duty on June 1, 2010, working seated duties only, with no reaching or lifting with her right arm. Ex. G at 118-119. In his report dated June 2, 2010, Dr. Ogrodnick indicated that the claimant was requesting a one-time change of physician to Dr. Castrejon. Dr. Ogrodnick gave copies of her MRI and of the DOWC paperwork so that the claimant could set up her first appointment with Dr. Castrejon. Dr. Ogrodnick also noted in his report that the claimant planned on keeping her appointment with Dr. Walden for a surgical consultation on June 3, 2010. Exhibit G at 120.
On June 3, 2010, the employer sent the claimant an offer of modified employment. Exhibit M at 170. The modified position was to begin on June 4, 2010. The claimant testified, however, that she did not respond to the offer because she was not able to work. Tr. at 30.
The claimant saw Dr. Walden on June 3, 2010, and he opined that the best course of action was to proceed with the right shoulder surgery. Exhibit J at 149.
The claimant first saw Dr. Castrejon on June 7, 2010. Dr. Castrejon took the claimant off of work from June 7, 2010, to June 21, 2010. Exhibit 4 at 34-35.
The claimant underwent surgery on her shoulder on June 16, 2010. The respondents informed the claimant that Integrity Urgent Care (IUC) would be her authorized treating physician. A physician assistant from IUC took the claimant off of work from June 23, 2010, to July 21, 2010. Exhibit I at 134. Another physician assistant from IUC saw the claimant and took her off of work from July 20, 2010, to August 19, 2010. Exhibit I at 138. Dr. Laporte from IUC saw the claimant on August 19, 2010, and took her off of work from August 19, 2010, to October 11, 2010. Exhibit 6 at 45. On October 11, 2010, the claimant saw Dr. Baca, and he took the claimant off of work “until [left] knee surgery.” Exhibit 6 at 39.
The claimant again saw Dr. Walden, and he recommended that the claimant undergo a left knee arthroscopy for probable medial meniscectomy and chondroplasty. Surgery originally was scheduled for November 10, 2010. The respondents, however, failed to authorize the surgery.
Then, on October 15, 2010, ALJ Friend issued an order transferring the claimant’s care to Dr. Castrejon as an authorized treating physician effective the date of his order.
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Thereafter, pursuant to W.C.R.P. 16, 7 Code Colo. Reg. 1101-3, the respondents sought utilization review for reasonableness, necessity, and relatedness of the requested surgery of the surgical procedures recommended by Dr. Walden. Dr. Davis conducted the review, and opined “to a reasonable degree of medical probability that the incident of May 14, 2010, the slip and twisting injury, aggravated complaints at the left knee, related to preexisting degenerative change. . . .” Dr. Davis also opined “to a reasonable degree of medical probability that Dr. Walden’s recommendation for arthroscopy of the knee is reasonable and necessary.” Dr. Davis further opined that “an abrasion chondroplasty may provide temporary relief prior to resurfacing of the knee, which likely will be required at some time in the future.” He further stated that the May 14, 2010, incident “most likely aggravated complaints at the left knee. . . .” Ex. L at 162.
Based on the opinions of Dr. Davis, the respondents denied authorization of the left knee surgery recommended by Dr. Walden.
A hearing was held on February 22, 2011. During the hearing, Dr. Rook testified that the claimant sustained a permanent aggravation of her knee condition or of her underlying osteoarthritis as a result of her industrial accident. Tr. at 54-55. Dr. Rook opined that the claimant needed to undergo surgery, and that her need for surgery is due to the aggravation of her arthritic condition caused by her fall. Tr. at 57. Dr. Rook also opined that the claimant’s arthritis in her knee was aggravated by the accident on May 14, 2010. Tr. at 62. Dr. Rook opined that a repair of the claimant’s meniscus tear “would help to some degree” in the short term. Tr. at 67. Further, Dr. Davis opined that the chondroplasty that Dr. Walden recommended is reasonable and necessary. Tr. at 81. Dr. Davis further opined that the May 14, 2010, accident accelerated the claimant’s need for the meniscal repair. He further opined that the chondroplasty “might buy time” for the claimant until a total knee replacement is necessary. Tr. at 83-84.
On April 29, 2011, the ALJ entered his findings of fact, conclusions of law, and order, ordering the respondent-insurer to authorize treatment for the claimant’s left knee pursuant to the recommendations of Dr. Walden, to pay the claimant additional TTD benefits from October 28, 2010, through December 20, 2010, and to pay TPD from December 21, 2010, and ongoing. As pertinent here, in his order, the ALJ found that the claimant requested “a one-time change of physician to Dr. Castrejon.” Findings at 2-3 ¶ 6. The ALJ concluded that Dr. Davis “testified explicitly that the injury on May 14, 2010, accelerated the need to repair the meniscus in Claimant’s left knee.” Conclusions at 5 ¶ 4. The ALJ concluded that the “left knee arthroscopy for a partial medial meniscectomy and probable chondroplasty is reasonable, necessary, and related to the Claimant’s industrial injury herein.” Conclusions at 5 ¶ 4. Further, the ALJ specifically concluded that the claimant “was continuously taken off work by an authorized treating
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physician from May 15, 2010 through December 20, 2010.” Conclusions at 5 ¶ 6. The ALJ also ruled that since the claimant began modified duty on December 21, 2010, she is entitled to TPD benefits.
I.
On review, the respondents argue that the ALJ erred as a matter of fact and law in concluding that the claimant’s left knee arthroscopy and probable partial medical meniscectomy and chondroplasty are reasonable, necessary, and related to the May 14, 2010, industrial injury. The respondents specifically argue that the claimant’s testimony that her left knee was asymptomatic prior to the May 14, 2010, is “incredible.” Respondents’ Brief at 10. In support of their argument, the respondents refer to the claimant’s age, obesity, and prior treatment for her left knee in the years of 2002, 2003, 2005, 2006, and 2009. The respondents further argue that the ALJ did not address Dr. Rook’s and Dr. Davis’ opinions that the recommended medial repair is not likely to cure and relieve the claimant’s complaints. Also, the respondents argue that the left knee arthroscopy and probable partial medial meniscectomy and chondroplasty recommended by Dr. Walden are outside the Medical Treatment Guidelines (Guidelines).
Section 8-42-101(1)(a), C.R.S. requires an employer to furnish reasonable and necessary medical treatment “to cure and relieve the employee from the effects of the 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 Claims Office, 989 P.2d 251 (Colo. App. 1999).
Here, we perceive no error in the ALJ’s ordering the respondent-insurer to authorize treatment for the claimant’s left knee pursuant to the recommendations of Dr. Walden. There is substantial evidence in the record supporting the ALJ’s conclusion that the surgical treatment is reasonably necessary to cure and relieve the claimant from the effects of her work related injury. Section 8-43-301(8), C.R.S. In his medical reports dated October 5, 2010, and November 11, 2010, Dr. Walden recommended left knee arthroscopy for partial medial meniscectomy and chondroplasty. Ex. 3 at 13, 15. Additionally, Dr. Rook opined that the claimant’s industrial injury on May 14, 2010, caused a permanent aggravation of her left knee condition. Ex. 2 at 7. In his report, Dr. Rook specifically opined that the claimant “sustained a permanent aggravation of her left knee condition” and that it required further treatment. Dr. Rook opined that the claimant now requires arthroscopic left knee surgery. Ex. 2 at 8. Further, as detailed above, during the hearing, Dr. Rook opined that the claimant needs to undergo surgery, and that her need for surgery is due to the aggravation of her arthritic condition caused by her fall. Tr. at 57. Moreover, in his report, Dr. Davis opined “to a reasonable degree of medical
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probability that the incident of May 14, 2010, the slip and twisting injury, aggravated complaints at the left knee, related to preexisting degenerative change. . . .” Further, Dr. Davis opined that “to a reasonable degree of medical probability that Dr. Walden’s recommendation for arthroscopy of the knee is reasonable and necessary.” Ex. L at 162. At the hearing, Dr. Davis further opined that the chondroplasty that is being requested by Dr. Walden is reasonable and necessary. Tr. at 81. The opinions of Dr. Rook and Dr. Davis were credited by the ALJ.
To the extent that the respondents argue that there is evidence which suggests that the arthroscopy, probable partial medical meniscectomy, and chondroplasty are not reasonable, necessary, and related to the May 14, 2010, industrial injury, the ALJ was not required to expressly cite to such evidence before rejecting it as being unpersuasive. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Further, the respondents contend that the left knee arthroscopy, probable partial medial meniscectomy, and chondroplasty recommended by Dr. Walden are outside the Guidelines. We are precluded from considering this argument, however. The Respondents did not raise the issue of the Guidelines in their position statement or during the hearing. Because the argument was not raised by the respondents before the ALJ, we are prevented from considering the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994).
II.
Next, the respondents argue that the ALJ erred, as a matter of law, in awarding the claimant TTD from October 28, 2010, through December 20, 2010, and TPD benefits from December 21, 2010, and ongoing. The respondents specifically argue that the claimant’s entitlement to TTD and TPD terminated when she failed to begin the modified employment offered to her by letter dated June 3, 2010. The respondents further contend that “conflicts in the evidence do not support the ALJ’s Order”, that the findings of fact do not support the ALJ’s Order, and that “[s]ubstantial evidence in the record does not support the ALJ’s award” of TTD and TPD. Respondents’ Brief at 21. We set aside the ALJ’s order regarding TTD and TPD benefits, and remand for further findings on the June 3, 2010, offer of modified employment and its effect, if any, on the claimant’s entitlement to temporary disability benefits.
Section 8-42-105(3), C.R.S. provides that TTD benefits shall continue until any one of the following takes place: (1) The employee reaches maximum medical improvement; (2) the employee returns to regular or modified employment; (3) the
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attending physician gives the employee a written release to return to regular employment; or (4) the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. The termination of TTD benefits under any one of the four enumerated conditions is mandatory Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).
Similarly, § 8-42-106(2), C.R.S. provides that TPD shall continue until either of the following occurs: (a) The employee reaches maximum medical improvement; or (b)(I) The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. . . .
Here, the ALJ found that the claimant was “taken off work by an authorized treating physician from May 15, 2010 through December 20, 2010.” Conclusion at 5 ¶ 6. Despite this finding, however, the record demonstrates that on June 1, 2010, Dr. Ogrodnick released the claimant to modified duty, and the employer offered the claimant a modified duty position on June 3, 2010. The claimant testified, however, that she did receive offers of modified employment from her employer to which she did not respond because she was not able to work. Tr. at 30. Additionally, the ALJ found that the claimant was requesting a one-time change of physician to Dr. Castrejon, but the record demonstrates that it was not until June 7, 2010, that Dr. Castrejon took the claimant off of work again. Thus, under these circumstances, the claimant was released to modified duty as of June 1, 2010, but the order is unclear on whether the ALJ considered if the claimant was able to perform the duties of the modified position. We, therefore, conclude that the findings of fact are insufficient on this issue to permit appellate review. Section 8-43-301(8), C.R.S. Consequently, we remand for further findings on the June 3, 2010, offer of modified employment and its effect, if any, on the claimant’s entitlement to temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order issued April 29, 2011, which ordered the respondent-insurer to authorize medical treatment for the claimant’s left knee is affirmed. We set aside that portion of the ALJ’s order regarding TTD and TPD benefits and remand for further findings on the June 3, 2010, offer of modified employment and its effect, if any, on the claimant’s entitlement to temporary disability benefits.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Brandee DeFalco-Galvin
______________________________ Kris Sanko
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SHARON EVANS, 1131 QUIVIRA DRIVE, COLORADO SPRINGS, CO, (Claimant).
WAL MART, Attn: SHERYL HARDY, COLORADO SPRINGS, CO, (Employer).
ILLINOIS NATIONAL INSURANCE COMPANY, Attn: JIM BEISLEY, C/O: CMI, BENTONVILLE, AR, (Insurer).
MCDIVITT LAW FIRM, P.C., Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: M. FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).
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