Opinion
W.C. No. 3-102-075
May 28, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gartland (ALJ). The claimant contends the ALJ erroneously found the claimant reached maximum medical improvement (MMI). We disagree and, therefore, affirm the ALJ's order which terminated temporary disability benefits and medical benefits.
On March 13, 1990, the claimant suffered compensable injuries to his left shoulder and chest. In January 1999 the claimant began receiving osteopathic manipulative treatments (OMT) for pain.
In July 2000 the claimant began treating with Dr. Palko-Schraa. In December 2000, Dr. Palko-Schraa recommended additional OMT treatments once every one or two weeks, and anticipated the claimant would reach MMI in three to four months. However, Dr. Palko- Schraa also opined the claimant would require treatment after MMI to maintain his condition.
The issue of MMI was previously endorsed for hearing. In an order dated March 12, 2001, an ALJ determined that additional OMT treatments had improved the claimant's condition and the claimant was not at MMI.
The claimant received 11 more OMT treatments between May 21, 2001 and November 7, 2001. In a report dated February 27, 2002, Dr. Palko-Schraa recommended a series of 8 more OMT treatments and a maintenance schedule of OMT sessions once every 3 weeks for the ensuing year. The respondents denied liability for additional OMT treatments.
At a hearing on September 18, 2002, Dr. Palko-Schraa opined the claimant was not at MMI because he believed there were treatments yet to be done to "achieve the potential for greater long-term healing and greater long-term function." (Tr. p. 81). However, he admitted that even if MMI were achieved, the claimant would still have a certain degree of instability and certain degree of vulnerability for exacerbation because in the course of normal daily living he tends episodically to exacerbate his underlying condition. (Tr. pp. 43, 44). Accordingly, Dr. Palko-Schraa admitted that "a certain amount of the treatment" he provides is "dedicated to dealing with this process of re-exacerbation." (Tr. pp. 13-14, 19).
The claimant testified that without OMT treatments his condition regressed. In particular, he stated that his neck tensed up "quite a bit," his sternum bothered him and the muscles in his neck and shoulders frequently tightened up. (Tr. p. 92). He testified that the OMT treatments reduced the pain in his neck, shoulder and sternum and allowed him to breath easier. (Tr. p. 92).
The ALJ found the OMT treatments the claimant received after the last hearing provided temporary relief from the effects of the industrial injury but did not lead to sustained improvement in the claimant's condition. (Finding of Fact 13). Therefore, the ALJ determined the claimant's underlying condition had become stable, and that the recommendation for additional OMT treatments is not likely to improve the claimant's condition. Consequently, the ALJ determined the claimant is at MMI.
However, the ALJ found the claimant established a need for ongoing medical benefits to relieve the effects of the injury or prevent a deterioration in his condition. Therefore, the ALJ awarded medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
On review the claimant contends the ALJ's findings of fact do not support the finding of MMI. In particular, the claimant contends the ALJ implicitly credited the testimony of Dr. Palko-Schraa and rejected the contrary opinions of Dr. Orent. Under these circumstances the claimant argues the ALJ was bound by Dr. Palko-Schraa's opinion the claimant is not at MMI. We disagree.
The respondents are obligated to provide treatment which is "reasonably needed" to cure and relieve the claimant from the effects of the injury. Section 8-42-101(1)(a), C.R.S. 2002. The obligation to provide medical benefits terminates when the claimant reaches MMI. However, Grover v. Industrial Commission, supra, allows an award future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant's condition.
Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, and the respondents retain the right to contest the reasonableness or necessity for any particular treatment. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
MMI exists "when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition." Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). However, the claimant correctly points out that a finding of MMI is not proper where the claimant is willing to undergo a course of medical treatment which has a reasonable prospect for improving his condition. Reynolds v. Industrial Claim Appeals Office, supra. Consequently, the pertinent issue on review is whether the prescribed medical treatment has a reasonable prospect of improving the claimant's condition.
In 1991, the General Assembly enacted Senate Bill 218 (SB 91-218) which created § 8-42-107(8)(b). The statute provides that the initial determination of MMI is to be made by an "authorized treating physician" and that the physician's determination is binding in the absence of an independent medical examination. However, SB 91-218 only applies to injuries which occur on or after July 1, 1991. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Consequently, the statute is not applicable to this 1990 injury claim.
The applicable law provides that MMI is a question of fact for the ALJ and her determination must be upheld if supported by substantial evidence in the record. See Golden Age Manor v. Industrial Commission, 716 P.2d 153 (Colo.App. 1985). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we must defer to the ALJ's credibility determinations, her assessment of the sufficiency and probative weight of the evidence and her resolution of conflicts in the evidence, including expert medical testimony. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002). Further, the ALJ's findings may be based on plausible inferences drawn from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). This is true because the ALJ is presumed to possess specialized knowledge which renders her competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
The medical evidence is subject to conflicting inferences. Although Dr. Palko-Schraa does not believe the claimant is at MMI, he opined the absence of OMT treatments caused a regression of the claimant's condition. (Tr. p. 21). Dr. Palko-Schraa also testified that the claimant demonstrated upper thoracic, neck, upper shoulder and anterior chest pain in the nature of a "waxing and waning type of syndrome." (Tr. p. 44). The ALJ resolved the conflicts in Dr. Palko-Schraa's against the claimant, and the ALJ's findings are plausible inferences from record. Moreover, we have no authority to substitute our judgement for that of the ALJ in this regard and, therefore, we decline the claimant's invitation to do so. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Further, it is well established that even uncontroverted medical evidence is not binding on the ALJ. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Rather, the ALJ is free to credit all or part of a medical expert's opinions. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Therefore, the ALJ was free to accept Dr. Palko-Schraa's opinions concerning the claimant's need for further OMT treatments without accepting the doctor's opinion that such treatment is reasonably designed to cure the industrial injuries.
The claimant's further argument that the ALJ's findings are internally inconsistent is not persuasive. The ALJ did not award any further benefits to "improve" the claimant's condition. Rather, the ALJ ordered the respondents to pay for previous medical treatment of the claimant's TMJ. In addition, the ALJ's finding that the OMT treatments provided some relief from the symptoms of the industrial injury is not inconsistent with the ALJ's finding that additional OMT treatments are not reasonably designed to improve the claimant's condition.
The claimant also contends the ALJ should have explicitly ordered the respondents to pay for the additional OMT treatments recommended by Dr. Palko-Schraa on February 27, 2002. We conclude the ALJ's order implicitly awards the additional OMT treatments.
The claimant's Application for Hearing dated May 31, 2002, endorsed the issue of medical benefits and specifically, the "medical treatment prescribed by Dr. Palko-Schraa." At the commencement of the hearing the claimant's attorney stated that the claimant sought an order awarding the treatment recommended by Dr. Palko-Schraa on February 27, 2002. (Tr. p. 5).
The ALJ found OMT treatments are reasonable and necessary to maintain the claimant's condition and prevent a deterioration of his condition. (Discussion and Conclusions of Law 5). Further, with record support the ALJ found the respondents do not dispute the claimant's entitlement to the OMT treatments prescribed by Dr. Palko-Schraa as Grover-type medical treatment. ( See respondents' post-hearing Position Statement p. 3). Because there is no dispute over the claimant's entitlement to this particular treatment the ALJ's award of Grover-type medical benefits inherently requires the respondents to pay for the OMT treatments prescribed by Dr. Palko-Schraa on February 27.
IT IS THEREFORE ORDERED that the ALJ's order dated October 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 28, 2003 to the following parties:
Felix F. Archuleta, P. O. Box 5148, Durango, CO 81302
Valley Welding Sheet Metal, Inc., c/o Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202
Subsequent Injury Fund, Tower 2, #630, Division of Workers' Compensation — Interagency Mail
Legal Department, Pinnacol Assurance — Interagency Mail
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
Joseph F. Haughain, Esq., 1525 Sherman St., 5th floor, Denver, CO 80203
BY: A. Hurtado