Opinion
W.C. No. 3-970-332
September 16, 1999.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Gandy (ALJ Gandy) dated June 17, 1999. The claimant contends ALJ Gandy erroneously allowed the respondents to withdraw a general admission of liability, and erred in determining maximum medical improvement (MMI). We modify the order, and as modified, affirm.
In 1989 the claimant suffered a compensable knee injury involving the aggravation of preexisting chondromalacia. The claimant was placed at MMI on July 1, 1992, and the claim was closed pursuant to the respondents' filing of an uncontested final admission of liability for permanent partial disability benefits. In 1994, the respondents voluntarily reopened the claim on grounds of a worsened condition and filed a general admission of liability for additional temporary total disability and medical benefits.
In 1998 both parties filed applications for hearing. The claimant requested penalties for the respondents' alleged failure to pay medical benefits and provide a TENS unit. The respondents applied for a hearing on the issue of MMI and requested to withdraw the 1994 general admission of liability.
The parties engaged in extensive prehearing discovery and litigation before ALJ Corchado and Prehearing Administrative Law Judge Purdie (PALJ). Thereafter, the claimant filed a motion to recuse ALJ Corchado. As a result the matter was reassigned to ALJ Gandy.
Based upon the evidence presented at a hearing on May 12, 1999, ALJ Gandy found that the claimant's ongoing need for medical treatment is the result of a natural progression of preexisting bilateral chondromalacia, and that the industrial injury neither caused nor contributed to the worsening of the claimant's condition after he reached MMI. In so doing, ALJ Gandy credited the testimony of Dr. Striplin and Dr. Orent.
ALJ Gandy also determined the claimant reached MMI for the industrial injury no later than June 25, 1998. Therefore, ALJ Gandy granted the respondents' request to withdraw the 1994 general admission of liability, and terminated the respondents' liability for temporary disability and medical benefits effective May 12, 1999.
I. A.
Relying on C.R.C.P. 97 and C.A.R. 21 the claimant contends all proceedings were suspended until the Colorado Supreme Court resolved his March 19, 1999, motion to recuse ALJ Corchado and the Division of Administrative Hearings (DOAH). Under these circumstances, the claimant contends that all orders entered after March 19, 1999, are void, and that ALJ Gandy abused his discretion in proceeding with the hearing on May 12, 1999. We disagree.
The claimant's March 18, 1999, motion requested the "disqualification of" ALJ Corchado from his claim. On April 13, 1999, ALJ Snider entered an order reassigning the claim to ALJ Gandy. Regardless of ALJ Snider's reasoning, the order granted the relief requested by the claimant, and therefore, we fail to perceive any prejudice to the claimant which resulted from ALJ Gandy's conduct of the hearing. Neither would his order be "void" because the claimant received the requested relief. See Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984); (a party who challenges an order as an abuse of discretion must show sufficient prejudice before it is reversible error). Renaissance Salon v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 97CA2121, June 10, 1999). Consequently, the error, if any, shall be disregarded. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
Furthermore, insofar as C.A.R. 21 and C.R.C.P. 97 are applicable to this claim, these rules provide that no proceedings are suspended after the claim is reassigned to another judge. ( See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (C.R.C.P. apply insofar as not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act.). Accordingly, ALJ Snider's April 13 order terminated any suspension of proceedings.
Moreover, the record contains no evidence that the Colorado Supreme Court has entered any order which disqualifies or precludes the DOAH from hearing the claim. Therefore, ALJ Gandy did not exceed his jurisdiction by proceeding with the hearing on May 12.
B.
The claimant also contends ALJ Gandy exceeded his authority in terminating the respondents' liability for further temporary disability benefits, prior to the resolution of his District Court action to enforce a subpoena duces tecum. Again we disagree.
The subpoena duces tecum required the respondents to produce canceled checks concerning the payment of medical benefits. The claimant requested the checks as support for his allegation that the respondents failed timely to pay medical benefits. At the hearing, the claimant announced that he was not ready to proceed on his claim for penalties. Consequently, ALJ Gandy continued that issue. (Tr. pp. 106, 117 ). However, the District Court action did not preclude ALJ Gandy from adjudicating the issues of MMI and future benefits.
Nevertheless, because the penalty issue was not ripe for adjudication, ALJ Gandy exceeded his authority insofar as he found that the claimant failed to prove the insurer delayed or failed to pay medical benefits. (See Findings of Fact 15 [mistakenly designated as finding 16] 16). Therefore, we modify the order to delete Findings of Fact 15 and 16.
C.
The claimant also contends ALJ Gandy violated his right to procedural due process. We are not persuaded.
The ALJ has wide discretion to control the course of the hearing. Section 8-43-207(1)(h), C.R.S. 1999; Puncec v. City County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970) ; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Upon a showing of "good cause" an ALJ may adjourn a hearing for the taking of additional evidence. Section 8-43-207(1)(j), C.R.S. 1999. Because the ALJ's authority is discretionary we may not disturb the ALJ's ruling in the absence of a clear "abuse of discretion."
The standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). The ALJ's ruling exceeds the bounds of reason where is it not supported by substantial evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
After Dr. Orent's testimony, the claimant requested a continuance to obtain and present evidence and medical testimony to rebut Dr. Orent's opinion that there is no causal connection between the claimant's worsened condition and the industrial injury. (Tr. p. 44). The respondents objected on grounds that the hearing had been set for six months, and the claimant had an adequate opportunity to discover Dr. Orent's opinions and obtain rebuttal testimony. The record supports the respondents' factual assertions, and therefore, we cannot say that ALJ Gandy abused his discretion in refusing to grant a continuance. See Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993) (in determining whether to grant a continuance, the ALJ should consider "the circumstances of the particular case, weighing the rights of the party requesting the continuance to a fair hearing against the prejudice that may result from delay").
D.
We have considered the claimant's further arguments in support of the allegation that he was denied a fair hearing, and they are without merit. At the commencement of the hearing the respondents' filed a "position statement" and the medical records they relied upon. The claimant did not object and did not request an extension of time to file a position statement. (Tr. p. 5). Under these circumstances, the claimant waived the argument that the medical records were improperly filed and that ALJ Gandy erroneously considered the respondents' position statement. See C.R.E. 103(a)(1) (timely objection or motion to strike must appear of record to preserve objection to admission of evidence); former § 8-43-210 C.R.S. 1998 [amended in 1999]; Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996), cert. denied, August 25, 1997, 97SC27 (issue not raised to the ALJ is considered waived on appeal).
II.
Relying on the statutory language currently codified at § 8-42-107(8)(b), C.R.S. 1999, the claimant next contends ALJ Gandy erroneously credited the opinions of Dr. Striplin and Dr. Orent, because neither is an "authorized treating physician," or an independent medical examiner selected by the Division of Workers' Compensation (Division). The claimant also contends none of the authorized treating physicians placed him at MMI. Therefore, the claimant argues the finding of MMI was erroneous. We perceive no error.
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 (IME). 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 1989 injury claim.
In contrast, the applicable law provides that MMI is a question of fact for the ALJ and his determination must be upheld if supported by substantial evidence in the record. See Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). Under this standard, we must defer to the ALJ's credibility determinations, his assessment of the sufficiency and probative weight of the evidence and his resolution of conflicts in the evidence, including expert medical testimony. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988)
Under the applicable law the ALJ was not required to afford any special weight to the opinions of the "authorized treating physicians," and the claimant was not required to undergo an IME to contest the authorized treating physician's opinion concerning MMI. Therefore, ALJ Gandy was free to rely on the opinions of Dr. Orent and Dr. Striplin.
There is substantial evidence in the testimony of Dr. Striplin and Dr. Orent to support ALJ Gandy's finding that the claimant reached MMI for the industrial injury. Furthermore, even if there is evidence that Drs. Striplin and Orent based their opinions on incomplete and inaccurate medical records, ALJ Gandy explicitly recognized that this evidence went to the weight of their opinions but did not preclude him from crediting their testimony. (Tr. p. 41); Industrial Commission v. Albo, 167 Colo. 2d 467, 447 P.2d 1006 (1968). Therefore, we may not disturb the ALJ's finding of MMI.
Moreover, the Rules of Procedure, Part XIV(L)(3)(e), 7 Code Colo. Reg. 1101-3 at 56, do not support a contrary result. Rule XIV(L) governs the procedure for Division-sponsored IMEs. There is no evidence that Dr. Striplin or Dr. Orent conducted a Division-sponsored IME. Consequently, the respondents failure to comply with Rule XIV(L) is immaterial.
III. A.
Next, the claimant contends ALJ erred in allowing the respondents retroactively to withdraw their general admission of liability. The claimant argues that in the absence of "fraud" the respondents are not entitled to "retroactive" relieve from the admission.
Admittedly, an insurer may not obtain retroactive relief from an admission of liability in the absence of "fraud." See Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981). However, a insurer may obtain prospective relief from an improvidently filed general admission of liability. See HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990).
Here, the respondents did not request, and ALJ Gandy did not grant a "retroactive" withdrawal of the 1994 general admission. Instead, the ALJ determined that there was no causal connection between the claimant's ongoing problems and the industrial injury, and therefore, ALJ Gandy granted the respondents prospective relief effective May 12, 1998.
B.
Nevertheless, the claimant contends that the respondents remain liable for his disability and medical benefits in the absence of an "intervening event or cause." We disagree.
An admission of liability for medical benefits is not an admission that all future medical treatment is compensable. To the contrary, the respondents are only responsible for medical treatment which is reasonably necessary to cure or relieve the effects of the industrial injury and the claimant bears the burden to prove the causal connection between a particular treatment and the industrial injury. Section 8-42-101(1)(a), C.R.S. 1999; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Accordingly, where the respondents contest liability for a particular medical benefit, the claimant must prove that it is reasonably necessary to treat the industrial injury. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Here, the ALJ was not persuaded the claimant proved a causal connection between the industrial injury and the need for future medical benefits. Therefore, the ALJ did not err in relieving the respondents of liability for the claimant's ongoing medical treatment.
Furthermore, temporary disability benefits terminate at MMI. See former § 8-51-102, C.R.S. (1989 Cum. Supp.); Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). ALJ Gandy found the claimant reached MMI for the industrial injury no later than June 1998, and this finding supports the termination of temporary disability benefits.
The claimant's further arguments on this issue have been considered and do not alter our conclusions.
IV.
Finally, the claimant contests generally certain procedural and interlocutory orders entered by PALJ Purdie and ALJ Corchado. The claimant contends that the orders create the appearance of "bias and unfair treatment."
Our authority is limited to the review of "final orders." Section 8-43-301(2), C.R.S. 1999; Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). An interlocutory order is not reviewable except as incidental to a final order which awards or denies benefits or penalties. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985).
ALJ Gandy did not award or deny the claimant's request for penalties. Therefore, insofar as the claimant challenges the procedural and pre-hearing orders concerning his claim for penalties, those orders are not incidental to the June 17 order and are not currently subject to review. Similarly, the respondents' use of the claimant's social security number to trace billing statements for treatment of the industrial injury pertains to the penalty claim, and thus, the PALJ's refusal to grant the claimant's motion for a cease and desist order is not subject to review at this time. Therefore, we do not consider the claimant's specific arguments concerning these interlocutory orders.
IT IS THEREFORE ORDERED that the ALJ's order dated June 17, 1999, is modified to delete Findings of Fact 15 16, and as modified, the order 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed September 16, 1999 to the following parties:
Gilbert D. Davis, P.O. Box 371012, Denver, CO 80237-5012
ABC Moulding, 13750 E. Smith Dr., Aurora, CO 80011-3150
John H. Demos, Claims Manager, Casualty Reciprocal Exchange, 9201 State Line Rd., P.O. Box 419497, Kansas City, MO 64173-0194
James E. Morlan, Morlan Company, 3333 North Federal Blvd., Denver, CO 80211-3213
Lynn D. Petersen, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: A. Pendroy