W.C. No. 4-679-289.Industrial Claim Appeals Office.
November 18, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated March 16, 2010 to the extent that it requires the respondents to pay for the claimant to have injections. We affirm.
This matter proceeded to hearing as to whether the claimant’s claim should be reopened and whether the claimant should undergo injections as a form of medical maintenance benefits. The hearing officer denied the claimant’s petition to reopen, but ordered the respondents to pay for the injections.
Several of the ALJ’s findings of fact are summarized as follows. The claimant sustained an admitted injury when she was hit by a passing skier while working as a ski instructor. The claimant had a herniated disk for which she had surgery. The claimant complained of intermittent and recurring left hip and groin pain. The respondents filed a final admission of liability admitting for an impairment rating of 19 percent whole person and for reasonable, necessary, and related medical treatment after maximum medical improvement.
The claimant underwent a Division-sponsored independent medical examination with Dr. Hemler. Dr. Hemler noted both the claimant’s complaints of persistent pain in her left groin area and corresponding injections that provided partial improvement for a short time. Asked to address the claimant’s lumbar spine and left hip, Dr. Hemler assessed a 15% whole person impairment for the claimant’s lumbar spine injury. The respondents filed a final admission of liability consistent with Dr. Hemler’s impairment rating and also admitted for maintenance medical treatment. See Grover v. Industrial
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Commission, 759 P.2d 705 (Colo. 1988). The claimant disputed the respondents’ final admission of liability and another ALJ determined that the claimant failed to overcome Dr. Hemler’s impairment rating. The claimant later proceeded to hearing before ALJ Mottram seeking to reopen her claim based on a change in medical condition and mistake.
The claimant also sought selective nerve blocks recommended by Dr. Stover, who noted that the claimant’s pelvic pain may be related to her accident and was consistent with her injury. However, Dr. Stover could not say the pain was definitely related and recommended nerve blocks. Dr. Jernigan, a treating physician, testified that the injections recommenced by Dr. Stover were diagnostic and if the injections did not identify a treatable condition the claimant would remain at maximum medical improvement. Dr. Bernton, on the other hand, opined that the treatment Dr. Stover recommended was not reasonable and necessary. The ALJ credited the opinions of Dr. Stover and Dr. Jernigan and determined that the injections Dr. Stover recommended were appropriate maintenance medical treatment intended to maintain the claimant at maximum medical improvement.
The respondents argue that the ALJ should have applied the doctrine of issue preclusion to bar what it asserts was further litigation of whether the claimant’s pelvic pain is related to her work injury. Issue preclusion is an equitable doctrine that bars relitigation of an issue that has been finally decided by a court in a prior action. Bebo Construction Co. v. Mattox O’Brien, 990 P.2d 78, 84 (Colo. 1999). Its purpose is to relieve parties of the burden of multiple lawsuits, to conserve judicial resources, and to promote reliance upon and confidence in the judicial system by preventing inconsistent decisions. Id. Although issue preclusion was conceived as a judicial doctrine, it has been extended to administrative proceedings, where it “may bind parties to an administrative agency’s findings of fact or conclusions of law.”Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). There, the supreme court stated that:
Issue preclusion bars relitigation of an issue if: (1) the issue sought to be precluded is identical to an issue actually determined in the prior proceedings; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.
Sunny Acres Villa, Inc., 25 P.3d at 47.
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According to the respondents another ALJ who upheld Dr. Hemler’s impairment rating (which did not include a rating for the claimant’s pelvis, hip, and groin) against the claimant’s challenge implicitly determined that those areas were not related to her work injury. The respondents therefore contend that the doctrine of issue preclusion prevented the claimant from seeking medical benefits related to her pelvis, hip, and groin. We conclude that issue preclusion does not apply in the circumstances.
The ALJ awarded the claimant the recommended injections as medical treatment necessary for diagnosis and for the claimant’s maintenance of maximum medical improvement. For purposes of Grover-type
medical benefits such as the injections, there is no distinction between “active treatment” and “diagnostic procedures” for purposes of awarding Grover-type medical benefits. See Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, (December 15, 1995). Moreover, after maintenance medical treatment is awarded it is for the ALJ to determine whether the disputed treatment is reasonable, necessary and causally related to the industrial injury. See Montoya v. Dist. 60 Maintenance Center, W.C. No. 4-684-357 (January 17, 2008); see also Kroupa v.Industrial Claim Appeals Office,53 P.3d 1192 (Colo. App. 2002); Karathanasis v. Chili’s, W. C. No. 4-461-989 (August 8, 2003).
The issue of maintenance, or Grover-type, medical treatment is not identical to the issue of the extent of the claimant’s impairment. Furthermore, the issue of maintenance medical treatment remains open; therefore, there is no finality to preclude litigation as to whether the recommended treatment is appropriate. Accordingly, all of the factors prescribed by our supreme court for the application of issue preclusion are not present.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 16, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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LINDA LOGAN, 1660 LAKE PURGATORY DR, DURANGO, CO, (Claimant).
DURANGO MOUNTAIN RESORT, Attn: ELIZABETH EDWARDS, DURANGO, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
DAWES AND HARRISS LLC, Attn: ROBERT C DAWES, ESQ., DURANGO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: JEFF FRANCIS, GRAND JUNCTION, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS MYRA VALENCIA, DENVER, CO, (Other Party).
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