Opinion
W.C. No. 4-309-217.
February 12, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated October 20, 2008, that denied the claimant's request for change of physician, denied medical maintenance benefits and denied claimant's request for penalties. We affirm.
On August 28, 1996, the claimant suffered a back injury in an admitted industrial accident. The Regional Transportation District (RTD) filed a final admission of liability that included medical maintenance benefits. The claimant received medical maintenance benefits for 10 years. Dr. Shaw, the claimant's authorized treating physician (ATP) retired and RTD designated Dr. Roth as the claimant's ATP. Dr. Roth reviewed the claimant's medical history and opined that the claimant's industrial injury was not the cause the claimant's current medical condition. Dr. Roth concluded that additional medication and radiographic studies were not reasonable, necessary or related to the claimant's August 1996 industrial injury. Dr. Roth opined that additional medical maintenance treatment for the claimant should no longer be considered work-related. Dr. Primack, who conducted an independent medical examination (IME), opined that medical treatment of the claimant after December 7, 2000 was not work-related. The ALJ concluded that the claimant was no longer entitled to receive medical maintenance benefits and that the claimant had failed to make a proper showing that he was entitled to a change of physician.
I.
The claimant first contends the ALJ erred by denying him an opportunity to challenge the written report of Dr. Primack. The claimant contends he sought to challenge Dr. Primack's report by attaching a report from Dr. Shaw and his own affidavit to a post-hearing position statement. The ALJ refused to consider either the report from Dr. Shaw or the claimant's affidavit. The claimant argues this was a denial of procedural due process. We do not agree.
The hearing on this claim took place on July 1, 2008. Dr. Primack conducted an IME on September 10, 2008. A prehearing conference was held before Prehearing Administrative Law Judge (PALJ) Jaynes on May 27, 2008 regarding RTD's motion to compel the claimant to undergo an IME. Exhibit C at 28-29. A second prehearing conference was held before PALJ DeMarino on June 16, 2008 who granted the RTD's motion for a continuance because the IME had not been completed. At the conclusion of the July 1, 2008 hearing ALJ Cannici affirmed the pre-hearing order that the claimant would be required to undergo an IME with Dr. Primack and permitted the respondent to introduce into evidence the report that Dr. Primack prepared. Exhibit C at 25-26. Various pleadings were filed, but in the considerable time it took to complete the examination with Dr. Primack the claimant did not request the opportunity to cross-examine Dr. Primack or permission to file additional medical reports. Later, the ALJ entered an order dated August 11, 2008, which continued the July 1, 2008 hearing for the purpose of rescheduling the IME with Dr. Primack and for filing the report and position statements with the ALJ. Dr. Primack performed an IME on September 10, 2008 and his report was filed with the ALJ. The claimant filed a position statement and attached various documents, including his own 56-paragraph affidavit and a new report from Dr. Shaw. The ALJ entered an order dated October 9, 2008, denying the claimant's request to file his affidavit, submit 22 additional exhibits or reopen the hearing. The ALJ then entered the order here under appeal, dated October 20, 2008, which relied in part on Dr. Primack's opinion that additional medical maintenance treatment for the claimant should no longer be considered work-related.
Preliminarily we note, as recognized by the ALJ, that parties are expected to present all of their evidence at the appointed hearing. See Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). Further, an ALJ has wide discretion to determine whether, after the apparent conclusion of the proceedings, it is appropriate to reopen the matter for the taking of additional evidence. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Here, we perceive no abuse of discretion in the ALJ's refusal to accept additional evidence.
The claimant argues the ALJ erred in not considering the affidavit he attached to his position statement filed after the hearing held on this matter. The claimant argues that the affidavit was a logically organized chronological listing of relevant facts. However, the affidavit does contain factual allegations made in support of his claim and these statements were not subject to cross-examination.
We perceive no error in the ALJ's decision to decline to consider information from claimant's affidavit. The affidavit is not competent because it is a hearsay document and is thus, inadmissible as such. See CRE 801(c), CRE 802; § 8-43-210, C.R.S. 2008; see also, Ortega v. Trico Construction Company, W.C. 3-966-968 (September 16, 1991). Further, although the transcript does not appear to be complete, it appears that the claimant chose not to testify at the hearing, but instead elected to file an affidavit. As noted by the ALJ cross-examination is a fundamental right and consideration of the affidavit would violate that right. Denver Symphony Ass'n v. Industrial Commission, 34 Colo.App. 343, 526 P.2d 685 (Colo.App. 1974).
The claimant argues that at the time of the hearing he was pro se. However, the claimant is presumed to know applicable statutes and is required to act accordingly. Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981). Therefore, the claimant's ignorance of the applicable procedural rules does not afford grounds for appellate relief. See Manka v. Martin, 200 Colo. 160, 614 P.2d 875 (1980) (pro se party is held to the same requirements as an attorney); Swanson v. Richard P. Henry D/B/A/ Steamboat Stoveworks, W.C. Nos. 4-589-465, 4-646-823, 4-646-825, 4-646-827, 4-646-828 and 4-646-829 (September 13, 2006).
In submitting the report of Dr. Shaw the claimant did not comply with § 8-43-210 C.R.S. 2008 which provides that all medical records shall be exchanged with all parties at least 20 days prior to the hearing date. We note, as did the ALJ, that § 8-43-209(3) C.R.S. 2008 provides that once the hearing is commenced the ALJ may, for good cause shown, continue the hearing to a date certain to file an additional medical report.
As above noted, RTD had been pursuing its rights to have the claimant undergo an IME before the July 2008 hearing, as early as May 27, 2008 when a PALJ granted the respondent's motion to compel the claimant to attend medical evaluations. Here the ALJ, in his order of September 18, 2008, continued the hearing under § 8-43-209(3) to obtain the respondent's IME and file his report, but no such request was made by the claimant until after the post-hearing position statements were filed. Under these circumstances we perceive no abuse of discretion in the ALJ's refusal to consider the additional report from Dr. Shaw.
II.
The claimant contends RTD, by filing an admission, waived any right to challenge that he is permanently disabled. However, here the issue was not whether the claimant suffered permanent disability. The issue was whether he was entitled to continue to receive medical maintenance benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Our courts have held that regardless of the filing of an admission for medical benefits or an order containing a general award of medical benefits, respondents retain the right to dispute whether the need for medical treatment was caused by the compensable injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) (concerning general admission of liability for medical benefits); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish the right to specific medical benefits, and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990) (filing of admission does not vitiate respondents' right to litigate disputed issues on a prospective basis). Indeed, because an award of post-MMI medical benefits is general in nature it does not constitute an award of specific medical benefits. Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003).
In our view, the fact that RTD filed an admission for permanent disability does not prevent it from contesting the claimant's present entitlement to particular medical benefits or whether the claimant is in need of any continued medical treatment as a result of the compensable injury. See Ralph Falsetto, v. Crested Butte and Liberty, W.C. 3-061-059 (November 29, 1994) (respondents may petition to reopen the issue of continuing medical benefits if they contend that the claimant's condition has improved to the point that he no longer is entitled to Grover benefits).
III.
The claimant contends that he repeatedly asked RTD to provide him with a list of physicians in the St. Louis area, but RTD did not respond. The claimant, citing Gianetto Oil v. Indus. Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996), contends he is entitled to select his ATP because RTD was required to respond within 20 days. The claimant requests that Dr. Kamat be appointed as his authorized treating physician.
The ALJ made the following findings. The claimant sought medical treatment from a physician in the St. Louis area. RTD requested a referral to a St. Louis physician from the ATP Dr. Shaw, but he was unable to provide a reference. Because Dr. Shaw noted the claimant only required treatment once or twice a year RTD elected to pay for the claimant's transportation to Denver so that he could continue to receive treatment from Dr. Shaw. Dr. Shaw later informed the parties that he planned to retire and the respondent designated Dr. Shaw's former partner, Dr. Roth as the new authorized treating physician. On February 4, 2008 the respondent e-mailed the claimant reiterating that Dr. Roth was the claimant's authorized treating physician and encouraged him to discuss a possible transfer of care to the St. Louis area. The claimant responded that he had an appointment with Dr. Kamat scheduled in St. Louis to discuss some issues. Dr. Roth subsequently determined that the claimant no longer needed medical maintenance benefits.
The ALJ determined that because the claimant is no longer entitled to receive medical maintenance benefits, any request for a subsequent change of physician is moot. An issue is moot when a judgment, if rendered, would have no practical legal effect upon an existing controversy. Rudnick v. Ferguson, 179 P.3d 26 (Colo.App. 2007); Gresh v. Balink, 148 P.3d 419 (Colo.App. 2006); American Family Mutual Insurance Co. v. Centura Health, 46 P.3d 490 (Colo.App. 2002). See also City and County of Denver v. Eat Out, Inc., 75 P.3d 1141 (Colo.App. 2003) (central issue in determining mootness is whether a change in the circumstances that prevailed at the beginning of litigation has forestalled the prospect for meaningful relief).
Here, we affirm the ALJ's order determining that the claimant is no longer entitled to receive medical benefits. In addition, the claimant has made no demand for reimbursement of medical expenses related to any treatment by Dr. Kamat. Therefore, a final order adjudicating the merits of whether the right of selection of the authorized treating physician passed to the claimant could have no practical effect on the controversy over the claimant's medical care. Hence, we conclude the matter of the claimant's authorized treating physician is moot.
IV.
The claimant points out that the Division-sponsored independent medical examination (DIME) procedures were not followed in this case. As we understand the claimant's argument, because of the failure to follow the DIME procedure the ALJ abused his discretion by ignoring Dr. Shaw's report. We are not persuaded that the ALJ erred by declining to consider Dr. Shaw's report.
We acknowledge that neither Dr. Primack nor Dr. Roth saw the claimant in the capacity of a DIME physician. However, as recognized by both prehearing ALJ's and the ALJ, RTD was entitled to have the claimant undergo independent medical examinations. Section 8-43-404 (1) C.R.S. 2008 provides that the claimant shall from time to time submit to an examination by a physician paid for by the insurer.
There appears to be confusion between a Division-sponsored independent medical examination and an independent medical examination permitted the insurer pursuant to § 8-43-404 (1). Here the issues presented to the ALJ were the claimant's request for change of physician, penalties and the need for continued medical maintenance benefits. In our opinion, on these issues the respondent was not required to initiate a DIME procedure.
A DIME physician's opinion has no presumptive weight on the issue of Grover medical benefits or change of physician. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); see also, Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (DIME determination of MMI did not preclude change of physician order where only Grover medical benefits were sought); Wilkinson v. Wal-Mart Stores, Inc., W.C. No. 4-674-582 (October 26, 2007). Regardless of whether a treating physician or a DIME physician recommended future medical treatment, RTD was free to deny liability and place the burden on the claimant to prove by a preponderance of evidence that he needed future medical treatment. Canales v. Peak Contract Manufacturing Inc. W. C. No. 4-348-069 (August 12, 2003), affd, Canales v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1712 May 13, 2004) (not selected for publication). In our opinion, because of the issues before the ALJ it simply was not relevant whether DIME procedures were followed.
V.
The claimant has in his brief requested imposition of penalties provided for by law for the illegal termination of the benefits, reimbursement for all attorney fees and litigation costs. The Workers' Compensation Statute requires that the proponent of a penalty "shall state with specificity the grounds on which the penalty is being asserted." Section 8-34-304 C.R.S. 2008. However, here the claimant has not briefed these issues and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
We note that on the issue of penalties the ALJ found that the claimant failed to demonstrate that he is entitled to recover penalties based on the respondent's failure to provide medical care and treatment. Specifically, the ALJ found that the respondent did not deny any treatment that Dr. Shaw recommended and when Dr. Roth became the claimant's ATP he determined that no additional medical maintenance treatment could be considered reasonable, necessary or related to the claimant's industrial injury. We further take note that in requesting penalties the claimant has not contested these findings. We are not persuaded to interfere with the ALJ's order regarding penalties. We also find no basis for an award of attorney fees or costs. IT IS THEREFORE ORDERED that the ALJ's order issued October 20, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
GILL L FORD, ST LOUIS, (Claimant).
REGIONAL TRANSPORTATION DISTRICT, Attn: BONNIE HANFORD, C/O: RTD, SENIOR RISK MANAGEMENT SPECIALIST, DENVER, CO, (Employer).
SULTON LAW OFFICES, Attn: ANNE T SULTON, OLYMPIA, WA, (For Claimant).
REGIONAL TRANSPORTATION DISTRICT, Attn: ROLF G ASPHAUG, ESQ., C/O: DEPUTY GENERAL COUNSEL, DENVER, CO (For Respondents).