Opinion
W.C. No. 4-628-418.
February 17, 2010.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 22, 2009, that found the claimant was entitled to permanent total disability (PTD) benefits and denied the respondent's request for suspension of benefits pursuant to § 8-43-404(3), C.R.S. 2009. We affirm.
The claimant sustained an admitted industrial injury on July 14, 2004. A railroad car ran over his right foot causing a severe crush injury. The claimant experienced problems with gangrene and healing which resulted in multiple surgeries. The matter was eventually heard on the issues of whether the claimant was entitled to PTD benefits and the respondent's motion to reduce or suspend PTD benefits due to the claimant's refusal to submit to additional surgical treatment. The proposed surgery was described as a transmetatarsal amputation on the mid foot in order to allow wounds to heal.
The order contains extensive evidentiary findings regarding the ALJ's additional determination that claimant had shown he has no ability to earn wages. The ALJ found that the claimant had no transferable skills and his restrictions make it unlikely that he will obtain and maintain employment in entry-level unskilled jobs. The ALJ determined the claimant was entitled to PTD benefits.
In regards to the surgery, the ALJ made the following findings. The offered fifth surgery was not reasonably essential to promote recovery such that the claimant would not be entitled to PTD benefits. The surgery was unlikely to enable the claimant to obtain and maintain employment. The ALJ concluded that the claimant's refusal to undergo surgery was not a bar to his PTD claim. Consequently, the ALJ denied the respondent's request for suspension of benefits under § 8-43-404(3). The respondent brings this appeal.
I.
The respondent first argues that the ALJ erred in finding that the surgery would not reduce the claimant's need to elevate his foot. The respondent contends that this finding is not supported by substantial evidence. The respondent further contends the error was not harmless because the proposed surgery would obviate the most significant permanent restriction, which was the claimant's need to elevate his foot. The respondent cites testimony from the claimant's vocational expert that the need to elevate his foot is incompatible with job placement in Colorado. As we understand the respondent's argument, it maintains that the alleged error by the ALJ on whether the proposed surgery would reduce the claimant's need to elevate his foot has an impact on the ALJ's conclusion that the surgery was unlikely to enable the claimant to obtain and maintain employment.
Because the issue of whether the surgery would reduce the claimant's need to elevate his foot is 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. 2009. 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).
The respondent's assertion notwithstanding, Dr. Groth's testimony and written opinions fully supports the ALJ's conclusion that the proposed surgery would not reduce the claimant's need to elevate his foot. We note that Dr. Groth's testimony was presented by the respondent. In response to a direct question from counsel for the respondent Dr. Groth stated that in his opinion the surgery would not alleviate the need for the claimant to have his foot elevated 15 minutes out of every two hours. Tr. at 164-65.
The respondent further argues that Dr. Groth did not elaborate or provide a "medical basis" for his opinions. In contrast, respondent points to the testimony of Dr. Ridings who testified that he had recommended elevating the claimant's foot because of edema and if he had the surgery he would not have to elevate his foot. Tr. at 180-81. However, we note that 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). Therefore, we cannot say that the ALJ erred as a matter of law in crediting the testimony of Dr. Groth rather than that of Dr. Ridings.
II.
The respondent next contends that the ALJ erred in finding that Dr. Groth opined "that the proposed surgery would not reduce the claimant's pain or improve his function." The respondent cites certain portions of Dr. Groth's testimony. The respondent notes that Dr. Groth opined the surgery would resolve ulcerations and "possibly increase function." Tr. at 167. Dr. Groth also testified that the proposed surgery would resolve ulcerations and without the surgery the impact would be long-term wound care and the generation of pain. Tr. at 167.
However, to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Comm'n, 165 Colo. 504, 441 P.2d 21 (1968). Here, in his written report Dr. Groth, in responding to questions posed by counsel for the respondent, opined that the proposed surgery would not restore physical function to the claimant compared to his current un-operated state. Exhibit D at 45. Further, in response to a question of whether the surgery was reasonably essential to promote recovery Dr. Groth stated that the surgery was not essential. Exhibit D at 45. Dr. Groth stated that the claimant had a very poor prognosis no matter what, so he could not presume that the proposed surgery would solve pain issues, but could address the likelihood of chronic wound issues. Exhibit D at 45. Dr. Growth opined that the surgery would not change the nerve pain. Tr. at 167.
In our view, the ALJ's finding that Dr. Groth opined "that the proposed surgery would not reduce the claimant's pain or improve his function" is supported by substantial evidence and plausible inferences drawn from the record. Therefore, we must uphold the ALJ's determination. Section 8-43-301(8).
The respondent further argues Dr. Ridings opined that the claimant's somatic pain would be dramatically decreased if the surgery went well. Tr. at 181. However, the ALJ found the opinions of Dr. Groth were more persuasive than the opinions of other medical experts, including Dr. Ridings. We may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Nor may we interfere with the ALJ's assessment of an expert witness's testimony because where, "as here, expert testimony is presented, the weight to be accorded . . . the testimony is a matter exclusively within the discretion of the [ALJ] as fact-finder." Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).
III.
The respondent next contends the ALJ erred in concluding that it failed to prove that reduction or suspension of PTD benefits was appropriate due to the claimant's refusal to submit to medical or surgical treatment reasonably essential to promote recovery. In reaching that conclusion, the respondent argues that the ALJ erred in determining that although the evidence showed that the recommended surgery would promote healing of the wounds of the right foot it did not demonstrate that the recommended surgery was essential to promote recovery from the work injury. Finding of Fact § 23 at 5.
Section 8-43-404(3), C.R.S. 2009, provides that a claimant's benefits may be reduced or suspended if the claimant "refuses to submit to such medical or surgical treatment . . . as is reasonably essential to promote recovery." The reasonableness of a claimant's refusal to submit to treatment is a question of fact for the ALJ. MGM Supply Co. v. Industrial Claim Appeals Office 62 P.3d 1001 (Colo. App. 2002). The ALJ's determination is not subject to revision on review absent an abuse of discretion. See Hays v. Industrial Comm `n, 138 Colo. 334, 333 P.2d 617 (1958).
The respondent contends that the ALJ erred in determining that successful application of the "refusal statute" required showing that the treatment is reasonable and necessary to assist the claimant in reaching maximum medical improvement (MMI). The ALJ did specifically find that the Division-sponsored independent medical examination (DIME) physician had determined that the claimant was at MMI and that decision was binding because the respondent had not challenged that opinion. The respondent had argued that whether a claimant is at MMI is irrelevant where the basis for termination of MMI is the claimant's refusal of treatment. The ALJ determined that the respondent must show that treatment is reasonable and necessary to assist the claimant to reach MMI. However, in our view a resolution of this issue is unnecessary because as we understand the ALJ's order, he went on to determine that even assuming § 8-43-404(3) still applied after the claimant reaches MMI, the respondent had failed to prove that reduction or suspension of PTD benefits is appropriate.
The ALJ reasoned that the issue of whether the treatment is reasonably essential to promote recovery and whether the claimant reasonably refuses the offered treatment is irrelevant to the current case. The ALJ concluded that the proposed surgery would not promote a recovery that would result in the claimant being able to obtain and maintain employment. Therefore, as we read the ALJ's order the claimant was entitled to PTD benefits whether or not he underwent the surgery.
Here, the insurance carrier is relieved by the claimant's refusal of surgery of responsibility for payment of the expense on the one hand, and on the other is not subject to increased liability for payment of indemnity benefits because of such refusal. That is because here the ALJ determined that the proposed surgery is unlikely to enable the claimant to obtain and maintain employment. Therefore, as we read the ALJ's order, the claimant's refusal of the surgery had no impact on his entitlement to PTD benefits.
Section 8-43-404(3), provides that a claimant's benefits may be reduced or suspended if the claimant refuses to submit to such medical or surgical treatment as is reasonably essential to promote recovery. However, we do not read § 8-43-404(3) as imposing a punitive obligation on the part of injured workers to submit to medical treatment that an insurance carrier or even an ALJ deems desirable for the general welfare of the worker.
Rather, § 8-43-404(3) seeks to prevent the situation where a claimant by refusal of reasonable medical treatment aggravates the compensable consequences of the industrial injury and thereby imposes increased liability on the respondent. See generally 1 Larson Workers' Compensation Law, § 10.10. This is not the situation before us. Here, the claimant's decision to refuse treatment has no impact on his entitlement to compensation. Therefore, the claimant's refusal of treatment does not increase the liability of the insurer.
We find the court's analysis in. Hays v. Industrial Comm'n instructive for this case. In Hays the court determined that while a claimant has the option to refuse treatment and continue as a complete invalid, he may not do so and continue to receive full compensation for the balance of his life. Here, the claimant's refusal of medical treatment does not entitle him to a greater amount of compensation. Therefore, we do not view the ALJ's refusal to reduce or suspend the claimant's benefits to be an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ's order dated October 22, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
LEE ARANDA, PUEBLO, CO, (Claimant).
EVRAZ, INC. dba CFI STEEL, L.P., Attn: CAROLYN BJUR, C/O: dba OREGON STEEL MILLS, INC., PORTLAND, OR, (Employer).
SEDGWICK CMS, Attn: MICHELLE TRESSLER, GREENWOOD VILLAGE, CO, (Insurer).
HEUSER HEUSER, LLP, Attn: GORDON HEUSER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LEE KINDER, LLC, Attn: KATHERINE M. LEE, ESQ./JEFFREY M ERICKSON, ESQ., DENVER, CO, (For Respondents).