Opinion
W.C. No. 4-604-873.
May 23, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ). The respondents contend the ALJ erred in concluding that the issue of maximum medical improvement (MMI) was not closed by the claimant's failure to file a timely application for hearing. The respondents further contend the ALJ erred in finding that the opinion of the Division-sponsored independent medical examination (DIME) physician was overcome on the issue of MMI, and by ordering the respondents to pay for a gastric bypass evaluation. We affirm.
The claimant sustained an admitted low back injury on January 20, 2004. Apparently, this injury aggravated low back symptoms which originated with two prior industrial injuries.
The claimant was treated conservatively by the authorized treating physician (ATP). However, on April 26, 2004, the ATP referred the claimant to Dr. Bee, a spine specialist. The ALJ found that Dr. Bee believes the claimant is a "good candidate for back surgery," but cannot safely undergo the procedure unless he loses weight. Therefore, Dr. Bee recommended the claimant receive an evaluation for gastric bypass surgery.
Despite Dr. Bee's recommendations, the ATP placed the claimant at MMI on April 30, 2004, and assigned a 13 percent whole person impairment based on a specific disorder of the spine and lost range of motion. The respondents filed a final admission of liability (FAL) based on the ATP's report. However a DIME was requested and performed on July 29, 2004. The DIME physician agreed with the ATP that the claimant reached MMI on April 30, and assigned a 15 percent whole person impairment. In his report the DIME physician stated the claimant does not need any additional treatment, and if the claimant needs gastric bypass surgery "it has no direct relationship to any of the workers' compensation injuries." On August 10, 2004, the respondents filed an amended FAL admitting for the DIME physician's impairment rating.
On August 5, 2004, just before the amended FAL was filed, the claimant filed an application for hearing. The application for hearing contains marks which identify the issues as medical benefits, reasonably related, related to injury, and "treatment after max. improvement." MMI was not separately listed as an issue. The respondents filed a response to the application on August 24, 2004, and specifically denied that any need for gastric bypass surgery is causally-related to the industrial injury.
At the hearing the claimant sought an award of medical benefits to include a gastric bypass evaluation as a preliminary step to bypass surgery, and ultimately back surgery if appropriate. Claimant's counsel argued the claimant is not at MMI without the bypass evaluation. Alternatively, counsel argued that the evaluation should be provided as a form of post-MMI medical treatment under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The respondents took the position that the claimant failed to file an application for hearing raising the issue of MMI within thirty days of the amended FAL. Therefore, the respondents argued the issue of MMI was closed under § 8-43-203(2)(b)(II), C.R.S. 2004.
The ALJ rejected the argument that the issue of MMI was closed. Instead, the ALJ found that the claimant's application for hearing requested medical benefits, the respondents were on notice of the claimant's desire for additional medical benefits, and the issue of MMI was "implicit in that request." Further, relying principally on the report of Dr. Bee, the ALJ found the claimant needs gastric bypass surgery to safely undergo back surgery for the industrial injury. Therefore the ALJ found there is clear and convincing evidence to overcome the DIME physician's opinion that the claimant is at MMI. Consequently, the ALJ ordered the respondents to provide a gastric bypass surgical evaluation, and to provide the surgery if deemed appropriate for the claimant.
I.
On review the respondents contend the ALJ erred in holding that the issue of MMI was not closed because of the claimant's failure to file a timely application for hearing raising the issue as required by § 8-43-203(2)(b)(II). The respondents argue that because the claimant expressly raised the issue of Grover-style medical benefits it "makes little sense" to find that the claimant was also seeking the gastric bypass evaluation to challenge the DIME physician's finding of MMI. We disagree.
Initially, we note that the claimant filed the August 5 application for hearing before the amended FAL was filed on August 10. The respondents do not argue and we do not consider what effect, if any, this fact has on the timeliness of the application for hearing under § 8-43-203(2)(b)(II). For purposes of this appeal the respondents apparently concede that if the issue of MMI was implicit in the application for hearing the issue was timely raised.
In Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004), the court held that the purpose of the procedures established by § 8-43-203(2)(b)(II) is to:
determine a claimant's medical condition: to utilize a DIME to assist in that determination; to require the employer to admit or "contest" the DIME report; to give the claimant an opportunity to "contest" the DIME report and the FAL; to give effect to the DIME physician's findings unless the contesting party overcomes them by clear an convincing evidence; to close all issues determined by the DIME physician when there is no dispute and, thus, no need for hearing; to close all issues determined by the hearing and review process; and to permit reopening of a final award on specified grounds, including change in the claimant's condition.
In light of these objectives, the Peregoy court stated that in order to comply with § 8-43-203(2)(b)(II), the claimant must file an application for hearing which contests "some aspect of the FAL." This is accomplished where the claimant is "able to state the benefit to which he or she is entitled." 87 P.3d at 264.
Here, the claimant's August 5 application for hearing alleges the claimant is entitled to additional medical benefits, and that one of the issues underlying the claim for medical benefits is whether or not the benefits are "related to injury." The ALJ logically interpreted this statement as an implicit attack on the DIME physician's determination that the claimant is at MMI because the need for the gastric bypass surgery, if any, "has no direct relationship" to the industrial injury. (DIME report, P. 6). The ALJ's interpretation is logical because MMI is defined as that point in time when the claimant's impairment is stable and "no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2004. Moreover, the Act contemplates that the DIME physician's opinion concerning the cause of a claimant's medical condition(s) and consequent need for treatment is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2004; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Thus, the claimant's application for hearing signaled a "constructive challenge" to the DIME physician's finding of MMI because the claimant sought additional medical treatment to assist her in reaching MMI. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
The fact that the claimant's application for hearing also listed the issue of medical benefits after MMI does not change the result. Our courts have held that failure to request Grover medical benefits at the time permanent disability is determined results in waiver of the right to receive such benefits. Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003). Thus, it was prudent for the claimant to apply for a hearing on Grover medical benefits in the event he was unsuccessful in attempting to overcome the DIME physician's finding that he was at MMI. It is conceivable that an ALJ could find the request for the gastric bypass evaluation is not reasonably needed to improve or "cure" the claimant's condition, but is part of a reasonable effort to prevent further deterioration of the condition. It is the purpose for which treatment is provided, not the "nature" of the treatment, which determines whether the treatment is curative or provided for maintentance reasons. Milco Construction v. Cowan, 860 P.2d 539, 542 (Colo.App. 1992); Hayward v. Unisys Corp., W.C. No. 4-230-686 (July 2, 2002), aff'd., Hayward v. Industrial Claim Appeals Office, (Colo.App. No. 02CA1446, January 9, 2003) (knee surgery may be curative or may be a form of Grover-style maintenance treatment designed to alleviate deterioration of the claimant's condition).
II.
The respondents next contend the evidence does not support the ALJ's finding that the gastric bypass evaluation is necessitated by the industrial injury. The respondents assert that evidence required the ALJ to find that the need for this evaluation is the result of the claimant's completely unrelated weight problem. We reject this argument.
In Public Service Co. of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999), the Court of Appeals held that "ancillary preoperative treatment is a pertinent rationale for reasonably necessary care of a non-industrial disorder" when that care must be given to "achieve optimum treatment of the compensable injury." Further, the court held that resolution of this issue is one of fact for determination by the ALJ.
Because the issue is one of fact, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert medical opinions are presented on the issue of causation, it is for the ALJ to determine the weight and credibility of such competing opinions. Cordova v. Industrial Claim Appeals Office, supra.
Here, the ALJ plausibly interpreted Dr. Bee's opinion to be that the claimant may need back surgery for the industrial injury, but consideration of such a procedure must await reduction in the claimant's weight. Hence, a gastric bypass evaluation is appropriate as a preliminary step in achieving optimum treatment of the underlying injury. Although the claimant's weight problem may not be causally-connected to the industrial injury, such a direct causal relationship is not required in order for such treatment to be compensable under the theory espoused by Public Service Co. While the respondents point out that some evidence and inferences could support a different result, that fact affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, supra. IT IS THEREFORE ORDERED that the ALJ's order dated December 2, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Salvador Cervantes, Colorado Springs, CO., School District #20, Colorado Springs, CO., Liberty Mutual, Englewood, CO., Kenneth A. Jaray, Esq., Colorado Springs, CO., (For Claimant).
David G. Kroll, Esq., Denver, CO., (For Respondents).