Opinion
W.C. No. 4-497-652.
November 5, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated June 30, 2008 that denied the claimant's request for a reclining chair and king size mattress. We affirm.
The claimant suffered an admitted industrial injury to his back and left hip in 2001. The claimant underwent numerous medical procedures but at the time of the 2008 hearing, had not achieved maximum medical improvement. At the hearing the claimant sought a reclining chair and a king size mattress based on the opinion of a treating physician. The ALJ found that the claimant failed to establish that it was more probably true than not that a reclining chair and a king size mattress were reasonable and necessary medical benefits designed to provide therapeutic relief from the effects of the claimant's industrial injury back injury. The claimant appealed.
Section 8-42-101(1)(a), C.R.S. 2008 provides, in pertinent part, that:
Every employer, regardless of said employer's method of insurance, shall furnish such, medical . . . hospital, and surgical supplies, crutches, and apparatus as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury.
In order for an apparatus to be compensable under this section, it must be "medical" in nature, "incidental" to obtaining necessary medical treatment, see Kuziel v. Pet Fair, Inc. 931 P.2d 521 ((Colo.App. 1996), or provide therapeutic relief from the effects of the injury. Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995).
The court of appeals has narrowly construed § 8-42-101(1)(a) when determining whether a particular apparatus or service is medical in nature. See Kuziel v. Pet Fair, Inc., supra (determining that child care services were not medical in nature because they did not relieve the symptoms or effects of the injury, and were not directly associated with the claimant's physical needs); Bogue v. SDI Corp., 931 P.2d 477 (Colo.App. 1996)(wheelchair-accessible van was not medical aid reasonably necessary for treatment of the claimant's incomplete quadriplegia); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995) (housecleaning services were not "incidental to" expense of providing reasonably necessary medical, nursing, or attendant care treatment services); Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra (stair glider was not medically necessary to relieve effects of injury); Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993) (lawn care services were unrelated to claimant's physical condition and were not prescribed to cure or relieve the claimant of the symptoms of the injury); ABC Disposal Services v. Fortier, 809 P. 1071 (Colo.App. 1990) (snow blower was not medical aid to cure or relieve the symptoms of industrial injury); See generally Mahoney v. Steven U. Mullens, P.C., W.C. No. 4-240-952 (June 20, 1996), rev'd sub nom., Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1140, 96CA1246, April 24, 1997) (not selected for publication).
The claimant advances three arguments in support of his contention that the ALJ's basis for denial of the request for the chair and bed was inappropriately based upon a "legally defective medical report." We are not persuaded.
I.
The claimant first contends that the prescribed supportive mattress and a reclining chair are no different than canes, wheelchairs, etc., which do not treat a medical problem per se but alleviate pain and allow the patient to be more mobile. The claimant argues these types of items are routinely approved for workers' compensation claimants.
The fact that the reclining chair and king size mattress were prescribed by the claimant's physician does not make it medically necessary. Country Squire Kennels v. Tarshis, supra (compensation denied for medically prescribed housecleaning services); ABC Disposal Services v. Fortier, supra (compensation denied for medically prescribed snow blower). Further, just because the reclining chair and king size mattress may make the claimant feel better does not mean they provide him with therapeutic relief. See Bogue v. SDI Corp., supra; see also Mahoney v. Steven U. Mullens, P.C., supra.
The claimant bears the burden of proof to establish the right to specific medical benefits, by a preponderance of the relevant evidence. Section 8-43-201, C.R.S. 2008; See Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo.App. 1990); HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990); Upchurch v. Industrial Commission, 703 P.2d 628 (Colo.App. 1985). Because these issues are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999).
Here a treating physician opined that a reclining chair and a specific mattress constituted a matter of medical necessity. However, the ALJ outlined deficiencies in the treating physician's opinion regarding the need for the reclining chair and mattress. The ALJ, with record support, made the following findings of fact. The claimant testified he already owns a reclining chair. Tr. 15. The treating physician failed to explain the necessity of the specific chair sought by the claimant. Exhibit 1. The treating physician also failed to comment on the symptoms that would be relieved by a specific chair, the precise condition that would be improved by the claimant's use of the reclining chair or the insufficiency of the claimant's current reclining chair. Exhibit 1.
In addition the ALJ credited the opinions of the respondents' expert in denying the request for the reclining chair and king size mattress. The respondents' expert opined that although a supportive mattress might be pleasant or comforting it would not constitute a therapeutic or treatment modality. Exhibit C. The respondents' expert opined that there had not been a clear determination of the cause of the claimant's continuing pain. The respondents' expert concluded that in the absence of a diagnosis, a supportive mattress could not be considered a bona fide treatment modality. Exhibit C
The ALJ concluded that although the specific reclining chair and king size mattress sought by the claimant might ease some aspects of his condition, the evidence failed to demonstrate that the apparatuses would provide therapeutic relief. In our view, there is substantial evidence in the record, which supports the ALJ's finding that the claimant failed to establish that the requested reclining chair was a reasonable and necessary medical benefit designed to provide therapeutic relief from the effects of his industrial injury.
II.
The claimant next argues that respondents' medical expert offered no comment upon the treating physicians' request for a reclining chair. Therefore, the claimant contends that the request for the reclining chair was medically unopposed and the ALJ erred in not awarding the chair.
We do not agree that because the respondents' medical expert offered no comment upon the treating physicians' request for a reclining chair that the ALJ was compelled to award the reclining chair. The ALJ is under no obligation to credit medical testimony, even if such testimony is unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). The respondents' position that the reclining chair was not reasonable and necessary need not be proven or supported by expert medical evidence. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); see also Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (pertinent lay testimony may support a finding of causation despite conflicting medical evidence or testimony).
As noted above it was the claimant, not the respondents, who had the burden of proof to establish the right to specific medical benefits by a preponderance of the relevant evidence. See Valley Tree Service v. Jimenez, supra; Upchurch v. Industrial Commission, supra. Again, as noted above, the ALJ found deficiencies in the opinion of the treating physician who had prescribed the reclining chair. On this basis alone, the ALJ could find that the claimant failed to carry his burden of proof. Here the ALJ was simply not persuaded that the claimant had carried his burden of proof.
III.
The claimant finally argues that the statement of the respondents' expert that "there is still no clear diagnosis" is simply bizarre. Because the claimant contends that the opinion of the respondents' expert is "bizarre," the claimant argues the opinion cannot be used as a basis for denying benefits. We are not persuaded.
We first note that the respondent's expert said, "[there] is not a clear diagnosis of the cause of the claimant's continuing pain." Exhibit C at 4. We agree with the claimant that the respondents' expert noted in his review of extensive medical reports that the claimant had left hip pain, severe back and leg pain, extreme lower extremity numbness, ilioinguinal pain, left groin pain and left buttock pain. However, we do not agree that these reports of pain constituted a medical diagnosis, nor do they explain the cause of the claimant's reported pain. Moreover, in that same review the respondents' expert noted that the treating physician had stated that the claimant was an enigma and that the treating physician could not diagnose a source for the claimant's pain. Exhibit C at 3. The claimant's arguments notwithstanding we cannot say the ALJ was compelled to disregard the opinion of the respondents' expert. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). IT IS THEREFORE ORDERED that the ALJ's order issued June 30, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________John D. Baird
____________________________________Thomas Schrant
MARK MAJOR, DACONO, CO, (Claimant).
SENTRY INSURANCE, Attn: KELLY SCHULTZ/CHERYL CHARLES, WI, (Insurer).
IRWIN BOESEN, Attn: LANE N COHEN, ESQ, DENVER, CO, (For Claimant).
WHITE STEELE, PC, Attn: DOMINION TOWERS, NORTH TOWER, C/O: STEPHEN G SPARR, ESQ., DENVER, CO, (For Respondents).