Opinion
W.C. No. 4-419-334
June 14, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Muramoto (ALJ) dated December 27, 2000, which required them to pay permanent partial disability benefits based upon the Division-sponsored independent medical examination (DIME) physician's 23 percent whole person impairment rating. We affirm.
On April 22, 1999, the claimant suffered an admitted injury when a dolly of drywall fell on his left shoulder and caused a third degree acromioclavicular joint separation. On April 27 Dr. Robinson performed an open reduction and fixation of the separation. During the surgery a Bosworth screw was installed in the shoulder through the distal clavicle. The ALJ found that within eight days after the surgery the claimant experienced significant neck pain and intense shoulder pain. Later the Bosworth screw became unstable and was surgically removed in August 1999. The claimant continued to treat with Dr. Robinson for complaints of left shoulder pain and weakness. The ALJ found that four months after the initial surgery the claimant's overall pain level was about the same as it had been prior to the surgeries. Dr. Robinson then diagnosed subacromial impingement syndrome and administered an injection of Marcaine into the subacromial space. When the injection did not provide any relief, Dr. Robinson diagnosed impingement tendinitis of the left shoulder. The claimant then underwent a two week trial of Celebrex without relief. At that point Dr. Robinson recommended an AC joint injection as a diagnostic tool to determine if further surgery consisting of a arthroscopic subacromial decompression would be beneficial. The claimant refused further surgery and, therefore, refused the AC joint injection. As a result, Dr. Robinson placed the claimant at maximum medical improvement (MMI) and assessed a zero permanent impairment rating. The respondents filed a Final Admission of Liability consistent with Dr. Robinson's rating. The claimant objected and requested a DIME.
Dr. Swarsen was selected to perform the DIME. In a report dated March 9, 2000, Dr. Swarsen agreed with Dr. Robinson's recommendations for additional treatment. Consequently, Dr. Swarsen opined the claimant is not at MMI. Nevertheless, Dr. Swarsen assigned a 23 percent whole person impairment rating. The respondents applied for a hearing to overcome Dr. Swarsen's DIME.
The ALJ determined the respondents failed to overcome Dr. Swarsen's permanent medical impairment rating by "clear and convincing" evidence as required by § 8-42-107(8)(c), C.R.S. 2000. Furthermore, the ALJ found that the claimant's refusal to undergo further injections or surgeries was reasonable. Therefore, the ALJ refused to reduce the claimant's permanent partial disability benefits as provided by § 8-43-404(3), C.R.S. 2000, and required the respondents to pay permanent disability benefits commensurate with Dr. Swarsen's 23 percent whole person impairment rating.
I.
On review the respondents first contend the ALJ erroneously found the claimant's refusal to undergo further surgery was reasonable. We disagree.
Section 8-43-404(3) provides that compensation may be reduced where the injured employee refuses to submit to medical or surgical treatment reasonably essential to promote his recovery. The statute is not applicable unless the respondents prove that the proposed treatment or surgery is free of unusual risks and calculated to effect a cure. Cain v. Industrial Commission, 136 Colo. 227, 315 P.2d 823, 828 (1957). The reasonableness of the claimant's refusal is a question of fact for resolution by the ALJ as the fact finder. Ibid. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Under this standard we must view the evidence in the light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). Furthermore, in determining whether the claimant's refusal was reasonable, the ALJ may consider the claimant's fear and anxiety towards surgery. National Lumber Creosoting Co. v. Kelly, 101 Colo. 535, 75 P.2d 144 (1937); Gross v. Ferrellgas Management Co., W.C. No. 4-008-293 (December 24, 1992).
Dr. McBride opined that the proposed surgery would relieve much of the claimant's symptomatology. However, he admitted there was no guarantee and that the chances of successful surgery were 75 to 80 percent. Dr. McBride also admitted that "all surgery" has risks including infection, failure to heal, post-operative pain, and complications from anesthesia. (Tr. pp. 26, 27). Contrary to the respondents' contention we do not read § 8-43- 404(3) to compel a reduction of benefits for a claimant's refusal to undergo surgery where the evidence suggests the surgery has no risks beyond the "usual risks of surgery." Rather, because surgery by nature is an invasive procedure, posing risks of permanent injury or fatality, the "usual" risks of surgery may, depending on the circumstances, constitute "unusual" risks of treatment.
Here, the ALJ found the claimant's medical history "rife with poor results from injections and surgery," and under these circumstances, the ALJ determined the claimant's refusal of further treatment of a similar type was reasonable. (Conclusions of Law 4). The medical record supports the ALJ's determination that the first surgery by Dr. Robinson was unsuccessful in relieving the claimant's pain symptoms due, in part, to the failure of the Bosworth screw. There is also ample evidence the subsequent surgery, physical therapy and injections did not significantly improve the claimant's condition.
The claimant testified that he had prior injections and two prior surgeries on his right shoulder. He stated that he did not want additional injections to the left shoulder because the prior injections did not improve his condition and Dr. Robinson almost broke a needle in his right arm. (Tr. p. 54). He also stated that he had surgery on his right hand for a work-related injury which left his hand numb and weak. (Tr. p. 55). Consequently, the claimant no longer believed the doctors' representations that "surgery" will "fix" his left shoulder problem. (Tr. p. 55).
Based upon this record we cannot say the ALJ erred as a matter of law in finding the claimant's refusal to submit to further surgery was reasonable. Moreover, Dr. McBride admitted that if the claimant declined further surgery the diagnostic injection was unnecessary. (Tr. p. 39). Therefore, the ALJ did not err in refusing to reduce the claimant's permanent disability benefits under § 8-43-404(3).
II.
Alternatively, the respondents contend the ALJ implicitly determined they failed to overcome Dr. Swarsen's opinion that the claimant is not at MMI. Under these circumstances, the respondents contend the award of permanent partial disability benefits was premature and the ALJ's findings of fact do not support the order. We disagree.
MMI is defined as the point in time when the claimant's condition is "stable and no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2000. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) ; Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). It is undisputed the claimant adamantly opposed further treatment in the form of injections or surgery. The ALJ found the claimant's opposition was reasonable.
Moreover, there is no finding or assertion that any treatments not rejected by the claimant offer a reasonable expectation of improving the claimant's condition. It follows that because the claimant refused to submit to the only treatment currently proposed to improve his condition, he is at MMI as a matter of law. See Dziewior v. Michigan Corp., 672 P.2d 1026 (Colo.App. 1983) (determination claimant was at MMI was proper so long as claimant refused treatment which had reasonable prospect of alleviating condition but not after claimant accepted the treatment); Sotelo v. National By Products, Inc., W.C. No. 4-320-606 (March 2, 2000) (determination of MMI a matter of law where undisputed evidence permits only one conclusion). Under these circumstances, it was unnecessary for the ALJ to determine whether the respondents' overcame Dr. Swarsen's finding of MMI. Rather, the ALJ reasonably inferred that the sole issue for adjudication was permanent medical impairment. Accordingly, the ALJ's findings of fact support the award of permanent partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated December 27, 2000, 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. 2000. 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 June 14, 2001 to the following parties:
Anthony L. Martinez, 3215 Osage, Denver, CO 80211
MGM Supply Company, 3296 S. Zuni St., Englewood, CO 80110-2142
Carol Turner, Mid-Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Pendroy