Opinion
W.C. No. 4-535-488
April 19, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which found the respondents failed to overcome the opinion of the Division-sponsored independent medical examination (DIME) physician that the claimant did not reach maximum medical improvement (MMI). The respondents further dispute the ALJ's determination that an injury which the claimant sustained in route to the DIME is compensable under the quasi-course of employment doctrine. We affirm the finding that the respondents failed to overcome the DIME and set aside the conclusion that any injury suffered in route to the DIME is compensable.
In February 2002 the claimant suffered a soft tissue injury to her thoracic region while employed as a registered nurse. Eventually the claimant was returned to regular duties and the claim for this injury was closed.
On July 8, 2002, the claimant suffered a second injury which is the subject of this claim. The claimant and another nurse were lifting a patient who had placed an arm around the neck of each nurse. Suddenly the patient lifted both feet of the ground and began to "swing." On July 9 the claimant was examined by an authorized treating physician (ATP), Dr. Hansen, who noted muscle spasms of the left trapezius and left back below the shoulder blades. Dr. Hansen diagnosed a muscle strain and questioned underlying thoracic spine problems. Dr. Hansen released the claimant to modified duty, and on July 10 the claimant returned to work as a medical records clerk until discharged for lack of work on January 31, 2003.
Dr. Hansen referred the claimant to Dr. Lawton in September 2002. In a medical history and pain drawing which the claimant produced for Dr. Lawton, the claimant mentioned pain in the right shoulder, head and neck. The claimant described her symptoms as "stabbing, burning, pins and needles" and spasms. Dr. Lawton diagnosed bilateral trapezial and rhomboid strains, and referred the claimant to Dr. Bohachevsky, as physiatrist.
Dr. Bohachevsky first examined the claimant on October 4, 2002, and noted a history of "burning and aching pain in [the claimant's] left scapular region that radiates toward the right scapula and up towards the neck." Dr. Bohachevsky diagnosed thoracic segmental dysfunction and cervical myofascial pain, and prescribed continuing physical therapy and commencement of chiropractic treatment.
On January 14, 2003, Dr. Bohachevsky issued a report opining the claimant had reached MMI. On February 19, 2003, Dr. Bohachevsky reiterated his finding of MMI and opined the claimant suffered no permanent medical impairment. On February 21, 2003, the respondents filed a Final Admission of Liability (FAL) terminating the claimant's temporary disability benefits effective December 30, 2002, and denying liability for permanent partial disability benefits.
The claimant requested a DIME in Denver, and the examination was scheduled for May 15, 2003. During the drive from claimant's home in Cortez to Denver, the claimant developed bilateral upper extremity symptoms which included "numbness and tingling in her hands and going up her arms into her shoulders." (Finding of Fact 15).
The DIME physician issued a report on June 2, 2003, opining the claimant is not at MMI. The DIME physician noted a "symptom complex" of "pain across the thoracic area into the arms and into the chest wall," and weakness in the pronator teres, a "para C6 muscle." Consequently, the DIME recommended an MRI of the cervical spine to evaluate the possibility of "radiculopathy, herniated nucleus pulposus, or syrinx in the area." The DIME physician also noted bilateral carpal tunnel syndrome (CTS) symptoms and recommended bilateral EMG studies.
The respondents sought a hearing to overcome the DIME physician's finding that the claimant is not at MMI. Specifically, the respondents disputed the DIME physician's opinion that the cervical and CTS symptoms are related to the industrial injury. In support, the respondents presented the reports of Dr. Bohachevsky who stated the claimant's upper extremity problems did not appear until May 2003, and could not be connected to the industrial injury. Therefore, he saw no causal relationship between the July 2002 injury and the need for a cervical MRI or EMG studies to evaluate CTS. He also noted the CTS symptoms could be caused by the claimant's thyroid problems.
Dr. Hansen was also consulted on the claimant's status. In August 2003 he agreed with the DIME physician that the claimant was not at MMI because she needed an MRI of the cervical spine to evaluate "unknown treatment for an unknown condition." Dr. Hansen stated the claimant could have injured her upper back in February 2002. He also expressed the opinion that CTS is not related to the industrial injury.
In September 2003 the claimant underwent a cervical MRI which showed minor degenerative changes, although the images were of "slightly limited quality." The record does not contain a report from Dr. Hansen evaluating this study. The claimant has not undergone an EMG test.
The ALJ found the respondents failed to overcome the DIME physician's opinion that the claimant is not at MMI. In support the ALJ found the claimant credibly testified that she has experienced neck stiffness since the February 2002 injury. The ALJ further noted that Dr. Hansen never opined the claimant reached MMI, and that Dr. Bohachevsky's opinions are not as persuasive as those of the DIME physician since Dr. Bohachevsky did not receive a detailed history of the July 2002 injury.
Next, the ALJ found that the claimant never experienced upper extremity problems before driving to Denver for the DIME. Citing the "quasi-course of employment doctrine," the ALJ concluded these "symptoms are causally related to claimant's work-related injury."
In light of these findings, the ALJ ordered the respondents to pay temporary partial disability benefits through January 31, 2003, and temporary total disability benefits thereafter. The ALJ further found the "cervical MRI and EMGs are reasonable and necessary to treat the claimant's work related injury," and ordered the respondents to pay for these tests.
I.
On review, the respondents first contend the ALJ erred in finding they failed to overcome the DIME physician's finding that the claimant is not at MMI. Specifically, the respondents contend the evidence compelled the ALJ to find the alleged cervical problems are not related to the July 2002 injury because the claimant did not complain of neck pain or upper extremity problems until the day of the DIME, some 5 months after being placed at MMI by Dr. Bohachevsky. We are not persuaded by this argument.
MMI exists when any physical or mental impairment as a result of the injury has become stable and no further treatment is reasonably expected to improve the condition. Section 8-40-201(11.5), C.R.S. 2003; MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002). A finding of MMI inherently involves issues of diagnosis because the physician must determine what medical conditions exist and which are causally related to the industrial injury. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Colorado AFL-CIO v. Donlon, 914 P.2d 396, 402 (Colo.App. 1995) (determinations of MMI and impairment are matters of diagnosis rather than of treatment). For these reasons we have previously held that diagnostic procedures are a prerequisite to a finding of MMI if such procedures have a reasonable prospect of "defining the claimant's condition and suggesting further treatment." See Eby v. Wal-Mart Stores, Inc., W.C. No. 4-350-176 (February 14, 2001), aff'd., Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0401, February 14, 2002) (not selected for publication); Villela v. Excel Corp., W.C. No. 4-400-281 (February 1, 2001).
The finding of a DIME physician that a claimant has or has not reached MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(2)(b)(III), C.R.S. 2003. Because determination of causation is an inherent part of the diagnostic process, the DIME physician's finding that a condition is or is not related to the industrial injury must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, supra.
Whether a party has overcome the DIME physician's finding concerning MMI by clear and convincing evidence is a question of fact for determination by the ALJ. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. The fact that alternative findings or inferences are possible affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, substantial evidence supports the ALJ's finding that the respondents failed to overcome the DIME physician's finding that the claimant was not at MMI in December 2002 because an MRI was necessary to assess the claimant's cervical condition. Contrary to the respondents' assertion, there is medical documentation that the claimant was suffering neck pain as well as "pins and needles" in her upper back, at least by September 2002 when she was examined by Dr. Lawton. Indeed, when the claimant was examined by Dr. Bohachevsky on October 4, 2002, he diagnosed "cervical myofascial pain." Such evidence tends to corroborate the claimant's testimony that she had experienced neck pain and stiffness since she was first injured in February 2002. (Tr. p. 23). Thus, there was medical history tending to support the DIME physician's opinion that the claimant might have a cervical problem, and the recommendation for an MRI was not based solely on the claimant's development of upper extremity symptoms immediately before the DIME.
Further, the DIME physician's recommendation for an MRI is supported by the opinions of Dr. Hansen. Dr. Hansen agreed with the DIME physician that an MRI was necessary because the claimant might have an "unknown" and previously undiagnosed cervical condition which would warrant additional treatment. (Claimant's Exhibit 24 p. 1). Under these circumstances the ALJ was not required to credit Dr. Bohachevsky's opinion that an MRI was unnecessary because the claimant's upper extremity problems are not work- related and probably caused by thoracic outlet syndrome. This is particularly true because Dr. Bohachevsky acknowledged that did not have "specific details of what heavy lifting was done to re-injure" the claimant. (Respondents' Exhibit L). In contrast, the ALJ correctly found that the DIME physician displayed a detailed understanding of the mechanism of injury.
Thus, there is ample evidence that the respondents failed to overcome the DIME physician's opinion that the claimant was not at MMI because she needed a diagnostic MRI to rule out the possibility of cervical disease caused or aggravated by the July 2002 industrial injury. It follows the ALJ did not error in ordering the reinstatement of temporary disability benefits and payment for the MRI. The fact that some evidence and inferences cited by the respondents might permit contrary findings is immaterial on review. In light of this determination we need not consider the respondents' arguments concerning the issue of the medical impairment ratings. MGM Supply Co. v. Industrial Claim Appeals Office, supra (determination of MMI must precede determination of medical impairment).
II.
The respondents next contend the ALJ erred in conclduing that the upper extremity symptoms which the claimant developed while traveling to Denver for the DIME are compensable under the quasi-course of employment doctrine. In particular the respondents argue that the EMG studies, designed to detect CTS, are not compensable under the quasi course doctrine because the DIME is a function of the litigation process, not the claimant's employment. The claimant argues the rule of "liberal construction" dictates a finding of compensability because the claimant was required to obtain a DIME to dispute Dr. Bohachevsky's finding of MMI. We agree with the respondents.
The quasi-course of employment doctrine applies to injuries sustained in the course of activities which, although they occur outside the normal time and space limits of the employment, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. Hence, the doctrine attenuates the "usual requisites of compensability, and thus, injuries received while undergoing authorized treatment for an industrial injury are considered compensable" despite being removed from the usual time and place limits of the employment. Price Mine Service v. Industrial Claim Appeals Office, 64 P.3d 936, 938 (Colo.App. 2003).). The theoretical basis for these holdings is that because the Act requires the employer to provide medical treatment and the claimant to submit to it, the "trip to the doctor's office becomes an implied part of the employment contract." Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393, 1395 (Colo.App. 1993).
However, in Jarosinski v. Industrial Claim Appeals Office, 62 P.2d 1082 (Colo.App. 2002), the court held that the quasi-course doctrine may not be extended to compensate "litigation stress" which the claimant developed as a result of a hearing she sought to overcome a DIME physician's finding of MMI and impairment rating, and receiving an adverse order denying her claim. The court ruled that when the claimant is presenting evidence and making argument in support of the claim the claimant "is not performing an activity which may fairly be characterized as service or activity inherent in the employment contract," but is instead "exercising the right to make a claim." Id. at 1085.
Recently, in Turner v. Waste Management of Colorado, W.C. No. 4-463-547 (September 24, 2003), we held that injuries which a claimant sustained when driving to his home after attending a vocational evaluation scheduled by the respondents are not compensable under the quasi-course doctrine. We noted the Act does not require the respondents to provide a vocational rehabilitation or evaluation, and the claimant's attendance at the evaluation was part of the respondents' effort to gather evidence and defend against the claim for permanent total disability benefits. Thus, as in Jarosinski, the evaluation was part of the litigation process and the "contractual obligation" element of the quasi-course doctrine was absent. Implicit in Turner is our conclusion that there is no distinction to be made between physical and mental injuries for purposes of applying the quasi-course doctrine.
The same principles apply here. The DIME serves an evidentiary function in the process of litigating disputes over MMI and the degree of medical impairment, and the DIME's opinions are given special weight only when the statute so requires. Cordova v. Industrial Claim Appeals Office, supra. Thus, a DIME is not "medical treatment" which respondents are required to provide and the claimant is required to accept as part of the implied contractual arrangement created by the Act. Rather, much like the videotapes described in Jarosinski, the DIME is a function of the litigation process by which each side gathers and presents evidence in support of or opposition to the claim. Indeed, the very legislative purposes behind creation of the DIME process include the reduction of bias associated with the opinions of treating physicians selected by one party or the other, and the reduction of litigation over MMI and permanent disability. Colorado AFL-CIO v. Donlon, 914 P.2d at 402.
It follows that we agree with the respondents that any "injuries" which the claimant sustained while driving to the DIME are not compensable under the quasi-course of employment doctrine. The claimant's attendance at the DIME was not part of the contractual relationship, but instead related to the litigation process. Jarosinski demonstrates the risks associated with litigation are not compensable under the Act.
The claimant's reliance on the rule of liberal construction does not persuade us otherwise. The principal objective of statutory construction is to effect the legislative intent. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo.App. 1998). Although the Act is to be liberally construed to effect its humanitarian purpose, its provisions may not be "pushed beyond the limits of their purpose, nor its funds diverted to those clearly not entitled thereto." See Industrial Commission v. Baldwin, 139 Colo. 268, 338 P.2d 103, 105 (1959).
As noted, the "quasi-course of employment doctrine" represents an attenuation of the ordinary statutory requirements that a compensable injury arise out of and in the course of the employment. Section 8-41-301(1)(c), C.R.S. 2003. In Jarosinski, the court held that the "attenuation" may not extend so far as to treat risks of litigation as risks of the employment, and therefore, place the burden of insuring against such risks on the employer. In our opinion, the claimant's reliance on the rule of liberal construction would push the protections and benefits of the Act beyond the intended beneficiaries, and subject employers to unpredictable liabilities not contemplated by the legislature. Cf. Huffman v. Koppers Co., 94 Md. App. 180, 616 A.2d 451 (1992), aff'd. 330 Md. 296, 623 A.2d 1296 (1993) (heart attack allegedly caused by stress experienced during deposition in workers' compensation case not compensable because deposition was part of litigation process, not employment relationship, and rule of liberal construction would not extend coverage to events occurring during claims process); see also, Carlson v. Young, 84 Ohio Law Abs. 403, 171 N.E.2d 736 (1959) (injuries sustained in bus accident not compensable where claimant was traveling to medical examination required to determine permanent disability). As noted by Professor Larson, when courts have declined to apply the quasi-course doctrine there has usually been "some added factor weakening the causal connection," including cases where "the purpose of the trip was not treatment by a doctor, but examination for purposes of a workers' compensation claim." 1 Larson's Workers' Compensation Law, § 10.07 (2003).
Thus, the ALJ's order is set aside insofar as it found the claimant's upper extremity symptoms constitute a compensable quasi-course of employment injury, and ordered the respondents to pay for EMG studies to evaluate this condition. However, on remand, the ALJ may consider whether or not the EMG studies should be compensable on the theory that they are reasonable diagnostic studies to evaluate the July 2002 industrial injury. It is not clear to us whether the ALJ considered this question, or failed to reach it because he found a separate quasi-course injury. Of course, resolution of this question is factual and we should not be understood as expressing any opinion concerning it.
IT IS THEREFORE ORDERED that the ALJ's order dated October 22, 2003, is affirmed insofar as it determined the claimant did not reach MMI and ordered the respondents to pay temporary disability benefits and for an MRI to evaluate the claimant's cervical spine.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it determined the claimant suffered a quasi-course of employment injury to her upper extremities and ordered the respondents to pay for EMG studies. The ALJ may reconsider the issue of liability for the EMG studies within the parameters discussed above.
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on April 19, 2004 by A. Hurtado.
Clara Ann Ince, 322 S. Elm St., Cortez, CO 81321
Southwest Memorial Hospital, c/o Mary Sue Akin, Southwest Health Systems, 1311 N. Mildred Rd., Cortez, CO 81321
Colorado Hospital Assn. Trust, c/o Mary Ann Donelson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)