Opinion
W.C. No. 3-957-008
August 13, 2001
FINAL ORDER
The pro se claimant seeks review of a Supplemental Order of Administrative Law Judge Coughlin (ALJ) which denied authorization for fusion surgery recommended by Dr. Mitchell. We affirm.
In 1989 the claimant suffered a compensable back injury. In 1993 the claimant underwent fusion surgery at L2-3 and L3-4 by Dr. Mitchell. Thereafter the claimant experience a variety of symptoms including testicular pain, incontinence, and lower extremity pain. In 1994 Dr. Mitchell recommended additional fusion surgery at L5-S1. By March 1997, Dr. Mitchell was no longer recommending additional surgery. However, in January 2000, Dr. Mitchell recommended an anterior posterior interbody fusion and posterior fusion at L5-S1. The claimant wants to proceed with the surgery recommended by Dr. Mitchell.
Dr. LaCert opined that from a psychological perspective the claimant is only a "marginal" candidate for further surgery and that there are multiple factors which reduce the claimant's chances for a successful outcome from additional fusion surgery. Dr. Janssen opined that further surgery is not reasonable or necessary and should be approached with "extreme caution" because only "minimal functional gains" could be expected.
Crediting the opinions of Dr. LaCert and Dr. Janssen, the ALJ found the surgery recommended by Dr. Mitchell does not have a reasonable prospect of success and is unlikely to improve the claimant's function or cure and relieve the effects of the industrial injury. In an order dated May 15, 2000, the ALJ determined the claimant reached maximum medical improvement (MMI) on August 5, 1998, and denied authorization for the anterior fusion recommended by Dr. Mitchell.
The respondents and the claimant separately petitioned for review of the May order. The respondents contested the ALJ's finding that the date of MMI was August 5, 1998.
On April 20, 2001, the ALJ entered a Supplemental Order which deleted the finding that the claimant reached MMI on August 5, 1998. Instead, the ALJ found the claimant is at MMI because the "claimant's underlying condition has become stable and nothing further in the way of treatment can be reasonably expected to improve his condition," and incorporated the remaining findings of fact, conclusions of law and May 15 order. This appeal followed.
The claimant's Petition to Review the Supplemental Order contains no specific allegations of error. Furthermore, the claimant has not filed a brief in support of the Petition to Review the Supplemental Order. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). However, the claimant's Brief in Support of the Petition to Review the ALJ's May 15 order is instructive. The claimant contended there is substantial medical evidence he suffers from a degenerative disease, and that he requires additional surgery which he is willing to undergo to treat the effects of the disease. In support the claimant cited medical evidence which confirms his symptoms and diagnosis. The claimant also contended Dr. Mitchell's surgery is reasonable because the 1993 surgery by Dr. Mitchell was successful. Under these circumstances, the claimant argued the ALJ erred in finding he was at MMI. We perceive no basis to interfere with the Supplemental Order.
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. Accordingly, MMI is inconsistent with a recommendation for further treatment which has a reasonable prospect of improving the claimant's condition. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995); Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990) [decided under the law prior to the enactment of § 8-40-201(11.5)].
The determination of whether particular treatment has a reasonable prospect of improving the claimant's condition is a question of fact for resolution by the ALJ based upon the particular circumstances presented. Gonzales v. Industrial Claim Appeals Office, supra; Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Where the record contains conflicting evidence, it is the ALJ's sole prerogative to determine the inference to be drawn and we may not substitute our judgment for that of the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Contrary to the claimant's argument, there is substantial evidence the 1993 fusion surgery was not successful. In fact, the claimant admits that the work-related symptoms began after the 1993 surgery.
Furthermore, there is substantial medical evidence in the medical opinions of Dr. Jenks, Dr. Kurica, Dr. LaCert, Dr. Kleiner and Dr. Janssen to support the ALJ's determination that even if additional fusion surgery is a standard treatment protocol, it is unlikely the claimant will achieve a successful result due to complicating physical and psychological factors. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ's order). Because the ALJ's findings support the finding of MMI and the order denying authorization for the surgical intervention recommended by Dr. Mitchell, it is immaterial the record contains some medical evidence which, if credited, might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993); F.R. Orr Construction v. Rinta, supra. Consequently, we do not address the evidence relied upon by the claimant in support of his argument that the proposed surgery is reasonable and necessary.
The claimant's remaining arguments have considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated April 20, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be 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 August 13, 2001 to the following parties:
Romney B. Tilbury, 756 Lookout Mountain Rd., Golden, CO 80401-9685
Academy School District #20, 7610 N. Union Blvd., Colorado Springs, CO 80920-3861
Transportation Insurance Company, CNA Insurance Company, 10333 E. Dry Creek Rd., Englewood, CO 80112
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy