Summary
In Merrill, the Panel interpreted § 8-43-404 (5)(a)(VI), C.R.S. as affording the ALJ discretionary authority to grant the claimant's request for a change of physician.
Summary of this case from In Matter of Claim Zolman v. Horizon Home, W.C. NoOpinion
W.C. No. 3-949-781
November 16, 1995
FINAL ORDER
The claimant and the respondents separately seek review of an order of Administrative Law Judge Gandy (ALJ). The respondents contest the order insofar as the ALJ reopened the claim, and granted a change of provider. The claimant contests the order allowing the respondents to offset their liability by the claimant's receipt of Social Security disability (SS) benefits. We affirm.
The parties agree that the claimant sustained a compensable low back injury on June 28, 1989, which was treated by Dr. Wirt. The parties also stipulate that the claim was closed pursuant to the respondents' filing of an uncontested Final Admission of Liability dated April 8, 1992. The Final Admission listed the date of maximum medical improvement (MMI) as October 29, 1990, terminated temporary disability benefits and admitted liability for permanent partial disability benefits.
Subsequently, the claimant petitioned to reopen the claim on the ground of change of condition. However, pursuant to a Show Cause Order dated September 9, 1993, the Director of the Division of Workers' Compensation (Director) dismissed the petition for lack of prosecution.
In November 1994, the claimant filed a second petition to reopen and alleged a change of condition requiring back surgery. The following January the claimant underwent back surgery by Dr. Akmakjian, and subsequently testified that the surgery significantly relieved her pain from the industrial injury. The claimant also requested a change of provider to Dr. Akmakjian.
The ALJ found the claimant's credible in all respects. The ALJ also found that the claimant's testimony concerning the worsening of her condition was supported by 1) Dr. Wirt's letter dated October 30, 1992; 2) the MRI dated September 22, 1992; 3) the MRI dated November 10, 1994; and 4) Dr. Kaiser's office notes from October 26, 1994. Therefore, the ALJ determined that the claimant sustained her burden of proof to reopen the claim based upon a change of condition.
I.
On review, the respondents first contend that the ALJ erred in reopening the claim because the claimant was aware of the need for surgery prior to April 1992. The respondents also argue that the claimant's subjective opinions are insufficient to support the ALJ's finding of a change of condition, and that the medical records cited by the ALJ have no probative value. We perceive no reversible error in the ALJ's order reopening the claim.
Section § 8-43-303(1), C.R.S. (1995 Cum. Supp.) [formerly § 8-53-113(1), C.R.S. (1989 Cum. Supp.)], authorizes the ALJ to "reopen any award" on the ground of mistake, error or change in condition within six years of the date of the injury. We may not disturb the ALJ's determination that the claimant sustained her burden to prove a change in condition in the absence of fraud or an abuse of discretion, and the appellate standard for an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, or is contrary to the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) ; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
As argued by the respondents, a request for ongoing medical treatment must be presented at the time of MMI. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). Consequently, where the claimant had an opportunity, but did not request foreseeable medical treatment at the time of MMI, the need for additional medical treatment standing alone, is insufficient to support a reopening of the claim. Anderson v. Ready Mix Concrete, W.C. No. 3-948-266, June 19, 1992, aff'd, Anderson v. Ready Mix Concrete (Colo.App. No. 92CA1060, March 25, 1993 ) (not selected for publication).
Here, the claimant admitted that Dr. Wirt recommended back surgery prior to April 1992. Tr. pp. 6, 7, 10, 21. Therefore, we agree that the claimant's need for surgery does not establish a basis to reopen the claim.
However, the ALJ's order is not based on the need for back surgery. In fact, the claimant had the back surgery before the hearing. Rather, the ALJ found that the claimant suffered a worsening of her condition due to the industrial injury which rendered the claimant temporarily and totally disabled. Therefore, the fact that the claimant failed to request surgery at the time the claim was closed did not preclude the ALJ from reopening the claim. See Milco Construction v. Cowan, supra, (claim may reopened for the purposes of further medical treatment where the claimant experiences an "unexpected and unforeseeable" change in condition).
Furthermore, substantial evidence of a worsened condition is not limited to medical evidence. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). Here, the ALJ was persuaded by the claimant's testimony that the condition of her low back gradually deteriorated after April 8, 1992, and particularly in late 1994 and early 1995 up to the date of the surgery. Tr. pp. 16, 20, 24, 33. The ALJ also found that the claimant's condition deteriorated to the point that the pain was intolerable and she was virtually incapacitated with regard to her ability to care for her children and perform activities of daily living. This finding is consistent with the claimant's testimony. Tr. p. 13, 20, 34.
Moreover, the ALJ's findings are plausible inferences from the medical evidence he expressly cited. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). For example, Dr. Wirt's October 30, 1992 correspondence indicates that the claimant's "degenerative" disc disease has already worsened since 1990, and requires another MRI. The ALJ could interpret Dr. Wirt's October 30 comments and the September 22, 1992 and November 10, 1994 MRI scans as reflecting a progression of the claimant's disc disease. The inference is buttressed by Dr. Kaiser's October 26, 1994 reference to the claimant's "deteriorating" lumbosacral and L4-5 disc disease.
The fact that Dr. Kaiser did not have the claimant's prior x-rays to review at the time of his examination may be pertinent in assessing the probative value of Dr. Kaiser's opinion. However, we have no authority to substitute our judgment for that of the ALJ in this regard, and decline the respondents' request to do so. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Consequently, there is substantial evidence that the claimant suffered a worsening of her condition from the industrial injury. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (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).
In reaching our conclusion, we agree with the respondents' argument that the claimant was required to prove that her condition worsened subsequent to the Director's September 1993 Show Cause Order. The Director's order, which dismissed the claimant's petition to reopen, effectively denied a claim for additional benefits based upon a worsening of condition between April 1992 and September 1993. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991) ("award" may be either an order or admission which grants or denies a benefit). Therefore, the claimant was precluded from obtaining further benefits based upon a change of condition unless she demonstrated a change subsequent to the Director's order. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994) (once an award becomes final by exhaustion of or failure to exhaust review proceedings no further benefits may be awarded unless there is a reopening of the claim). However, the evidence the ALJ found persuasive indicates a worsening of condition subsequent to the fall of 1993.
II.
The respondents also contest the ALJ's determination that the claimant made a "proper showing" under former § 8-51-110(5)(a), C.R.S. (1989 Cum. Supp.)[currently codified at § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.)] for a change of physician. The ALJ's determination was based upon his finding that the claimant and Dr. Wirt were unable to communicate properly, and that Dr. Wirt's treatment "did not prove effective in relieving the Claimant from the effects of her injury." The ALJ also found that the claimant had established a trusting relationship with Dr. Akmakjian as a result of the successful surgery. Consequently, the ALJ granted the claimant's request to treat with Dr. Akmakjian.
The respondents contend that there is not substantial evidence to support a finding that Dr. Wirt's treatment "did not prove effective in relieving the Claimant from the effects of her injury," because Dr. Wirt recommended the same surgery which was ultimately performed by Dr. Akmakjian. The respondents further argue that the claimant's personal dissatisfaction with Dr. Wirt is insufficient to support an order for a change of provider.
We have interpreted § 8-43-404(5)(a) as affording the ALJ discretionary authority to grant the claimant's request for a change of physician. Vigil v. City Cab Co. W.C. No. 3-985-493, May 23, 1995; Carson v. Wal Mart, W.C. No. 3-964-079, April 12, 1993. However, the respondents are correct in stating that the ALJ is not compelled to grant a change of physician based upon the claimant's personal dissatisfaction with a physician. See Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985); Garcia v. Kings Table (Colo.App. No. 92CA1570, May 27, 1993) (not selected for publication) (ALJ did not err in failing to grant change of provider based upon claimant's dislike of the attending physician).
Here, the claimant testified that she understood Dr. Wirt's opinion to be that, the odds improving her condition with back surgery did not justify the risks of surgery, and therefore, the claimant rejected Dr. Wirt's recommendation for surgery. Tr. p. 6, 7. The ALJ could and did, infer from this testimony that Dr. Wirt's treatment was ineffective insofar as the communication problems between the claimant and Dr. Wirt delayed the claimant's receipt of medical treatment which ultimately improved her condition. Furthermore, the record supports the ALJ's implicit determination that the claimant's dissatisfaction with Dr. Wirt had an objective basis. Therefore, we cannot say that the ALJ's finding of a "proper showing" for a change of provider exceeds the bounds of reason. See Rosenberg v. Board of Education of School District #1, supra; Ramirez v. Monfort, Inc., W.C. Nos. 4-152-417, 4-188-908 4-188-910, May 5, 1995; Herrera Gray v. El Paso County School District #1, W.C. No. 3-998-244, October 15, 1993 .
III.
For its part, the claimant contends that the ALJ erred in granting the respondents request for a retroactive offset of the claimant's SS benefits. In support, the claimant first argues that the respondents waived the right to an offset for all SS benefits received prior to November 14, 1994, the date the claimant filed her second petition to reopen. We disagree.
"Waiver" is the intentional relinquishment of a known right. Although a waiver may be explicit or implicit, it must be based upon "full knowledge of all the relevant facts." Johnson v. Industrial Commission, 761 P.2d 1140, 1147 (Colo. 1988).
The record supports the ALJ's finding that at the time of the respondents' Final Admission of Liability the claimant had been denied SS benefits. Subsequently, on September 23, 1992, the claimant was awarded SS benefits retroactive to June 1, 1990. Because the respondents could not have had knowledge of the claimant's SS benefit award in April 1992, the respondents could not have knowingly waived their right to a statutory offset by filing the April 1992 Final Admission. Similarly, the fact that the respondents contested the claimant's 1992 petition to reopen based upon a change of condition, does not compel a finding that the respondents waived their right to the statutory offset.
Next, the Workers' Compensation Act does not preclude a retroactive SS offset. See Wilson v. Jim Snyder Drilling, 747 P.2d 647 (Colo. 1987). To the contrary, § 8-43-303(2) provides that upon reopening a claim, compensation previously ordered may be "ended, diminished, maintained, or increased," so long as the reopening does not affect "moneys already paid."
In Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011, 1012 (1947), the Colorado Supreme Court allowed a retroactive increase in temporary disability benefits upon the reopening of the claim. The court stated that the statutory language concerning "moneys already paid" means that the reopening of a claim may not include a finding that moneys previously paid to the claimant are no longer the property of the claimant and must be returned to the worker's compensation insurer.
Further, in Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988), the Supreme Court upheld a retroactive offset of SS benefits. In so doing the court stated that "there is nothing in the language or structure of Colorado's worker's compensation legislative that limits the insurer's claim of offset only to benefits payable prospectively from the date on which the offset is claimed." Johnson v. Industrial Commission 761 P.2d 1144. However, insofar as the offset resulted in a prior overpayment of workers' compensation benefits, the court limited the insurer's remedy to a reduction of future benefits. Johnson v. Industrial Commission, 761 P.2d 1145; see also Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995) (ALJ has no authority to order repayment of fraudulently induced workers' compensation benefits).
Admittedly, Johnson did not involve the reopening of a claim. However, Johnson does state that a reduction of future benefits would not violate the prohibition against affecting moneys already paid, and our conclusions in Hollandsworth v. Precision Paving, W.C. No. 3-785-482, February 10, 1995, do not compel the opposite result.
Hollandsworth involved a claimant who was overpaid workers' compensation death benefits as a result of an award of SS "mothers' benefits." The sole issue on review was whether the ALJ erroneously denied the insurer's request for an order requiring the claimant to "repay" benefits. Based upon Morrison and Johnson, a division of the Panel concluded that the ALJ properly denied the request for "reimbursement." In so doing, the Panel discussed the language in Morrison and Johnson which supports the proposition that the recovery of overpaid benefits by the reduction of future benefits does not violate the statutory prohibition against affecting "moneys already paid."
Admittedly, in Hollandsworth the Panel suggested a possible conflict between Morrison and Johnson, and stated that the purpose of the reopening statute is to preclude the respondents from seeking "repayment" of benefits directly "or by way of reducing other benefits to which the claimants have a statutory right." However, in Hollandsworth the insurer did not request to recovery previously overpaid benefits by reducing the claimant's future workers' compensation benefits. Instead the insurer sought a "repayment." Consequently, this discussion constituted dicta, and we do not consider it persuasive in view of the facts presented in this case.
Contrary to the claimant's contention, we do not understand the ALJ's order as violating the prohibition against affecting "moneys already paid." The ALJ "merged" the respondents' "Brief in Support of Respondents' Motion for Offset" with his findings of fact. The respondents' brief does not request the repayment of benefits, but only requests a credit against future workers' compensation benefits due the claimant. Accordingly, we read the ALJ's order as granting credit against future workers' compensation benefits paid to the claimant for all SS benefits paid to the claimant and her dependents after June 28, 1989.
Lastly, the claimant contends that the respondents' appeal is groundless and frivolous and seeks an award of costs and attorney fees. We presume that the claimant's request is made pursuant to § 8-43-301(14), C.R.S. (1995 Cum. Supp.). However, § 8-43-301(14) is only governs injuries arising on or after July 1, 1991. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Therefore, the statute is not applicable to this claim.
IT IS THEREFORE ORDERED that the ALJ's order dated April 7, 1995, is affirmed.
IT IS FURTHER ORDERED that the claimant's motion for costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed November 16, 1995 to the following parties:
Dawn Davis-Merrill, 2500 E. Harmony Rd., #254, Ft. Collins, CO 80525
Mulberry Inn, Inc., 1100 Umatilla St., Denver, CO 80204
TIG Insurance Co., 6400 S. Fiddlers Circle, Ste. 1300, Englewood, CO 80111
Stephen J. Jouard, Esq., P.O. Drawer J. Ft. Collins, CO 80522
(For the Claimant)
Clyde E. Hook, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227
(For the Respondents)
BY: _______________________