Opinion
W.C. No. 4-164-329
June 19, 1996
FINAL ORDER
The respondent filed a Petition to Review an order of Administrative Law Judge Erickson (ALJ) dated February 14, 1995, which awarded medical benefits. The ALJ subsequently issued a Supplemental Order dated March 20, 1995, and the respondent timely appealed. We set aside the Supplemental Order and affirm the order of February 14, 1995.
Under § 8-43-301(4), C.R.S. 1995 (Cum. Supp.), the ALJ has thirty days from the date appellate briefs are "filed or the time for filing has run" to either issue a supplemental order or transmit the file to the industrial claim appeals office for review. In Hillebrand Construction Co. v Worf, 780 P.2d 24 (Colo.App. 1989), the court concluded that the failure to issue a supplemental order within thirty days deprives the ALJ of jurisdiction and requires that the matter be transmitted for review.
As argued by the claimant, the briefing schedule in this matter indicates that the time for filing appellate briefs concerning the respondent's Petition to Review the February 14, order expired January 29, 1996. Therefore, the ALJ had until February 28, 1996 to issue a Supplemental Order.
The ALJ's Supplemental Order is dated March 20, 1996, and was mailed March 22, 1996. Consequently, the Supplemental Order is void. Hillebrand Construction Co. v. Worf, 780 P.2d at 26.
In reaching this conclusion we recognize the respondent's argument that the claimant did not petition for review of the Supplemental Order, and is therefore precluded from challenging the validity of the Supplemental Order. However, the respondent petitioned for review of the Supplemental Order and jurisdictional challenges may be raised at any point in the proceeding. Neoplan USA Corp. v. Industrial Commission, 778 P.2d 312 (Colo.App. 1989). Furthermore, jurisdiction cannot be waived, or conferred by consent. See Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984) .
As a result, we are left to consider the respondent's petition to review the ALJ's February 14 order. The ALJ determined that the claimant's authorized treating physicians include Dr. Bralliar, Dr. Lockwood and Dr. Franotovic. On February 11, 1994, Dr. Lockwood determined the claimant to be at maximum medical improvement (MMI). The ALJ also found that the claimant subsequently underwent a low-dose CT scan at the recommendation of Dr. Hitchcock, and was referred by Dr. Bralliar to Dr. Stecher for a second neurological examination. Based upon his determination that the low-dose CT scan and second neurological opinion were "reasonable and necessary," the ALJ ordered the respondent to pay for this medical treatment and provide continuing medical treatment from the claimant's authorized treating physicians.
Relying upon Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the respondent contends that the ALJ lacked jurisdiction to hear the claim for further medical benefits, and erred in awarding benefits beyond February 11, 1994. We agree with the respondent that Story v. Industrial Claim Appeals Office, supra, is dispositive. However, the respondent misstates the holding in Story.
Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) provides that the authorized treating physician who provided the primary care shall determine MMI and that determination is binding unless the claimant undergoes an independent medical examination (IME) on the issue of MMI. The statute further states that no hearing shall be held on the issue of MMI until the IME is completed.
In Story v. Industrial Claim Appeals Office, supra, the claimant requested additional medical benefits after one of her treating physicians determined MMI. Based upon medical evidence that the claimant was not at MMI, an ALJ granted the claimant a change of physician and awarded additional medical benefits. We concluded that in the absence of an IME under the provisions of § 8-42-107(8)(b) the ALJ exceeded her jurisdiction in determining that the claimant was not at MMI. Therefore, we set aside the award of medical benefits, and order granting the claimant a change of provider.
On appeal, the Story court upheld our conclusion held that the ALJ lacked jurisdiction to resolve any dispute concerning the validity of the treating physician's MMI determination in the absence of an IME. The Story court also agreed that where the claimant's request for a change of physician amounts to a constructive challenge of the treating physician's determination of MMI, and the claimant seeks a change of physicians to obtain further treatment to reach MMI, the ALJ lacks authority to hear the request for further medical benefits in the absence of an IME.
However, the Story court concluded that an IME is not a prerequisite to a hearing concerning a request for future medical treatment pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Consequently, the Story court concluded that, insofar as the claimant sought Grover medical benefits, the ALJ's jurisdiction was not dependent on the claimant's compliance with the IME provisions of § 8-42-107(8)(b).
Here, the record indicates that the claimant made a request for Grover medical benefits at the commencement of the hearing. Counsel for the claimant stated that without disputing Dr. Lockwood's February 11, 1994 determination of MMI, the claimant sought further medical care. (Tr. p. 7). The claimant's counsel also stated that:
"Even if the Court were to find correctly or incorrectly that MMI occurred when Dr. Lockwood said it did, that does not mediate the issue of entitlement to ongoing medical benefits."
Therefore, insofar as the claimant was requesting Grover medical benefits, and not medical treatment to achieve MMI, the ALJ's jurisdiction was not dependent on the claimant's compliance with the IME provisions of § 8-42-107(8)(b). Story v. Industrial Claim Appeals Office, supra. Consequently, the ALJ did not err insofar as he resolved the claimant's request for Grover medical benefits.
Moreover, even if the statements by claimant's counsel do not reflect a request for Grover benefits, the record indicates that the issue was tried by consent. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Both parties questioned Dr. Bralliar and Dr. Lockwood about the claimant's need for future medical treatment. (Tr. pp. 63, 85, 103, 110, 111). Therefore, the respondent waived any objection to the ALJ's consideration of the claim for Grover medical benefits. Robbolino v. Fischer-White Contractors, supra.
Next, the respondent contends that the ALJ erred in awarding specific Grover medical benefits consisting of the low-dose CT scan and a second neurological opinion from Dr. Stecher. The respondent contends that the record does not support the ALJ's findings that this treatment is "reasonable and necessary." We disagree.
The respondent is obligated to provide treatment which is "reasonably needed" to cure and relieve the claimant from the effects of the injury. Section 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.). The claimant is entitled to Grover type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to cure and relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. See Stollmeyer v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1798, September 14, 1995), cert. denied. April 29, 1996 ; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992).
As we have previously stated, neither the Workers' Compensation Act, nor the case law, makes an arbitrary distinction between "active treatment" and "diagnostic procedures." See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949) (exploratory surgery compensable in order to ascertain the extent of the claimant's industrial injury); Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, December 15, 1995; Atwood v. Western Slope Industries, W.C. No. 3-069-135, November 28, 1994 (medical monitoring compensable). In fact, in Milco Construction v. Cowan, supra, the court concluded that medical treatment, which prevents deterioration in the claimant's condition, is compensable "irrespective of its nature."
Here, Dr. Lockwood testified that despite his determination of MMI the claimant was directed to return to see him on an "as needed basis," and was scheduled for a "follow-up" examination by Dr. Hitchcock. (Tr. pp. 103, 111). In his report of February 17, 1994, Dr. Hitchcock noted that the claimant previously underwent an MRI scan, and continues to have problems related to her injury. Consequently, Dr. Hitchcock recommended further evaluation in the form of a low-dose CT scan to determination whether the claimant's disc herniation was appropriate for surgical intervention. Dr. Hitchcock added that for this purpose the low-dose CT scan was a "better test" than a repeat MRI.
Moreover, Dr. Bralliar testified that the results of Dr. Hitchcock's low-dose CT scan were significant in showing that the claimant suffered additional disc herniation and protrusion subsequent to the October 1993 MRI scan. (Tr. p. 61). Dr. Bralliar stated that it was this increased herniation which accounted for his determination that a second neurological evaluation to determine whether the claimant was a surgical candidate. (Tr. pp. 61; 62, 73). Consequently, the medical record contains substantial evidence to support the ALJ's finding that the low dose CT scan and second neurological examination were reasonable and necessary to cure, relieve or prevent a future deterioration of the claimant's condition.
Lastly, we are not persuaded that the record is insufficient to support the ALJ's finding that Dr. Bralliar "referred" the claimant to Dr. Stecher for the second neurological opinion. In his report of May 11, 1994 Dr. Bralliar stated "It is my recommendation patient be seen for second opinion by Karl Stecher, M.D. neurosurgeon." Similarly, Dr. Bralliar testified that he "referred" the claimant to Dr. Stecher for the second opinion. (Tr. pp. 61, 82).
The fact that Dr. Bralliar further stated that his "recommendation" of Dr. Stecher was not a "referral" merely reflects an internal inconsistency in Dr. Bralliar's testimony. (Tr. pp. 83-85). The ALJ implicitly resolved the conflict against the respondent and we may not interfere with that determination. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
In any case, the claimant testified that there was a "referral" by Dr. Bralliar to Dr. Stecher. (Tr. p. 16). Therefore, insofar as the respondent asserts that a referral "involves a directive to a patient to see a particular physician," the ALJ's finding that Dr. Stecher became authorized to treat the claimant pursuant to a referral from Dr. Bralliar is buttressed by the claimant's testimony.
The respondent's further arguments do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated February 14, 1995 is affirmed.
IT IS FURTHER ORDERED that the ALJ's Supplemental Order dated March 20, 1995, is void.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed June 19, 1996 to the following parties:
Linda J. Brown, 8405 E. Hampden Ave., #19G, Denver, CO 80231
Ina Warboys, Littleton Hospital, 2525 S. Downing St., C-2P, Denver, CO 80210
Debbie Hawthorn, Porter Memorial Hospital, 2525 S. Downing St., Denver, CO 80210
Jayne McGuire, Littleton Hospital, 7700 South Broadway, Littleton, CO 80122
Terry Lee, OHMS, Inc., 700 Broadway, Ste. 1132, Denver, CO 80273
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For the Claimant)
Thomas O. McBride, Esq. Art M. Lee, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For the Respondents)
BY: _______________________