Opinion
W.C. No. 4-486-812.
October 9, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated April 13, 2007 that denied the claimant's request for permanent total disability benefits and for future medical maintenance benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant is a 34 year old female who worked for the employer as a certified nurse's aid. The claimant suffered an admitted industrial injury to her lower back on December 26, 2000. Dr. Peveto placed the claimant at maximum medical improvement (MMI) on October 15, 2003 and assigned various work restrictions. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician agreed with Dr. Peveto that the claimant had reached MMI and agreed with the permanent work restrictions that Dr. Peveto had imposed. Mr. Macurak performed a vocational evaluation and testified that although the claimant would have to limit her job search to specific positions that fit within her work restrictions, she was capable of earning wages in her job market. Dr. Elms performed a vocational evaluation. Dr. Elms testified that the claimant had no transferable job skills within her work restrictions and required vocational rehabilitation and placement assistance before she would be capable of earning wages. The claimant was involved in a 2004 car accident and suffered assaults in 2004 that involved trauma to her back. Dr. Goldman credibly testified that any medical maintenance treatment the claimant required was no longer predicated on her industrial injury, but was related to the intervening events of her car accident and assaults.
The ALJ determined, based on the persuasive testimony of vocational expert Mr. Macurak and considering a number of "human factors," that the claimant had failed to establish that it was more likely than not that she was unable to earn any wages in the same or other employment. The ALJ also found that the claimant had failed to present substantial evidence to support a determination that future medical treatment would be reasonably necessary to relieve the effects of her industrial injury or prevent further deterioration of her condition under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
The petition to review contains four allegations of error. The claimant contends the ALJ erred in denying permanent total disability benefits and in denying Grover medical benefits. The claimant argues that in the event that the ALJ properly denied Grover medical benefits he erred in not ordering respondents to pay for drug rehabilitation. The claimant also contends that the decision indicated the ALJ is biased against injured workers. The claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
I.
Our authority to review the ALJ's order is defined in § 8-43-301(8), C.R.S. 2007. That statute precludes us from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law.
A claimant is entitled to permanent total disability benefits if the claimant is "unable to earn wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2007. Under the statute, the claimant carries the burden of proof to establish permanent total disability by a preponderance of the evidence. The overall objective is to determine whether employment is reasonably available to the claimant under his or her particular circumstances. In making this determination, the ALJ may consider the effects of the industrial injury in light of the claimant's "human factors" including the claimant's general physical and mental condition, work history, age and education. Ultimately, the existence of permanent total disability is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998); Holly Nursing Care Center v. Industrial Claim Appeal s Office, 992 P.2d 701 (Colo.App. 1999).
We have reviewed the record and the ALJ's findings of fact. The ALJ expressly considered the claimant's medical history, functional capacities, medical restrictions and the claimant's subjective assessment of her abilities. Furthermore, the ALJ recognized the direct conflict between the vocational rehabilitation experts concerning whether there was work available to the claimant. Within his sole prerogative, the ALJ resolved the conflict in favor of the respondents' vocational expert and that expert's testimony contains substantial evidence to support the ALJ's finding that the claimant remains qualified for jobs in the commutable labor market. The determination of the weight to be accorded expert testimony is a matter within the ALJ's province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). We perceive no basis on which to interfere with the ALJ's determination that the claimant failed to establish that she is unable to earn any wages in the same or other employment.
II.
The claimant next contends the ALJ erred in denying ongoing medical benefits after MMI pursuant to Grover v. Industrial Commission, supra. The burden of proof was on the claimant to establish entitlement to Grover medical benefits. Grover v. Industrial Commission., supra; Cordova v. Foundation Builders Inc. W. C. No. 4-296-404 (April 20, 2001). In order to be entitled to receive Grover medical benefits the claimant must present, at the time permanent disability benefits are determined, substantial evidence that future medical treatment is or will be reasonably necessary to relieve the claimant from the effects of the injury or to prevent deterioration of the claimant's condition. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). The question of whether the claimant met the burden of proof to establish an entitlement to ongoing medical benefits is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Renzelman v. Falcon School District, W. C. No. 4-508-925 (August 4, 2003),
The ALJ found with record support that Dr. Goldman testified that any medical maintenance treatment the claimant currently required was no longer predicated on her industrial injury, but was related to the intervening events of her car accident and assaults. Exhibit K at 185, Tr. (1/18/07) at 177-180. Dr. Goldman's expert testimony contains substantial evidence to support the ALJ's finding. We perceive no reversible error in the ALJ's determination that the claimant failed to meet her burden of establishing entitlement to ongoing medical benefits.
The claimant next contends that even if Grover medical benefits were properly denied the ALJ erred in not ordering the respondents to pay for drug rehabilitation. At the time of the first hearing, the claimant agreed that the issues for determination were permanent total disability and Grover medical benefits. Tr. (10/26/2006) at 3. Counsel for the claimant also stated at the first hearing that to the best of his knowledge all medical benefits had been paid. Tr. (10/26/2006) at 11. At the time of the last hearing, the parties entered into a stipulation. They stipulated that although the claimant had a problem with alcohol and drugs at the time of MMI, she currently has absolutely no problem with drugs and alcohol in her life. Tr. (3/9/2007) at 199. In the position statement filed by the claimant after the last hearing, but before entry of the order under appeal, the claimant stated that the parties had stipulated that the claimant's prior drug use did not contribute in any way to her disability and had no idea why evidence of drug use was presented in the first place. Further, we are unable to find any request for drug rehabilitation in the claimant's position statement.
The argument regarding drug rehabilitation does not appear to have been raised by the claimant before the ALJ. ( See Claimant's Post Hearing Position Statement, March 23, 2007). Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
In addition, if the request for the respondents to pay for drug rehabilitation refers to past services performed it is inconsistent with the statement of counsel for the claimant that all medical services had been paid for. In the alternative if the request for drug rehabilitation refers to services the claimant desires in the future, then because MMI has been reached the services must be in the nature of Grover medical benefits. In that case, we have already determined above there was substantial evidence in the record supporting the ALJ's finding that the claimant was not entitled to Grover medical benefits. Therefore, we conclude the claimant has failed to establish grounds to disturb the ALJ's order regarding drug rehabilitation.
III
The claimant next contends that the decision indicates the ALJ is biased against injured workers. The claimant filed a motion to recuse the ALJ after the ALJ had issued his order of April 13, 2007 denying the request benefits. In the motion to recuse the claimant contended that counsel for the claimant was unaware that the ALJ was biased and prejudiced against the claimant until the order was received. The claimant stated she would document with extreme detail, in her brief in support of the petition to review, the basis for the allegation of bias. Since the brief in support of her petition to review was intended to document the claimant's contention of the ALJ's bias, the claimant requested that the matter be referred to another ALJ to rule on her motion to grant additional time to file her brief. However, the ALJ granted claimant's request for additional time to file the brief in support of her petition to review. The claimant did not file a verified affidavit setting forth factual allegations that, if true, would demonstrate bias or the appearance of bias and prejudice. After the additional time had elapsed, without the claimant filing her brief, the ALJ denied the claimant's motion to recuse.
In his petition to review, the claimant cites no evidence that the ALJ had prejudged any issue relevant to resolution of this claim. See Nesbit v. Industrial Commission, 43 Colo. App. 398, 607 P.2d 1024 (1979) (substantial showing of bias necessary to support conclusion that hearing was unfair); In Re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (Colo.App. 1977) (adverse ruling alone does not support conclusion that hearing officer biased). It follows that the claimant made no showing of facts to overcome the presumption of competency, and fairness, which resides with the ALJ. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated April 13, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
DIANE SELVAGE, COLORADO SPRINGS, CO, (Claimant).
DONNA ORTIZ, Attn: TERRACE GARDENS HEALTH CARE, COLORADO SPRINGS, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: RUSTY PINCKNEY, ADJUSTER, C/O: AIG CLAIM SERVICES, INC., PHOENIX, AZ, (Insurer).
ALEXANDER RICCI, L.L.C., Attn: WILLIAM A ALEXANDER JR, STE B, COLORADO SPRINGS, CO, (For Claimant) .
JOANNE CREBASSA, Attn: SENTER GOLDFARB RICE LLC, C/O: 0, CO, (For Respondents).