Opinion
W.C. No. 4-650-961.
October 28, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Margot Jones (ALJ) dated June 2, 2011, that ordered the respondents to pay for medical and temporary disability benefits. We affirm the ALJ's order.
A hearing was held on the issues of whether the claimant presented clear and convincing evidence to overcome the Division Independent Medical Examiner's (DIME) opinion on maximum medical improvement (MMI), whether gastric bypass surgery was reasonable, necessary and related medical treatment and whether the claimant was entitled to temporary disability benefits. After the hearing the ALJ entered findings of fact which for purposes of review can be summarized as follows.
The claimant sustained an admitted industrial injury to his left ankle on April 12, 2005. The claimant weighed approximately 500 pounds on the date of the injury and he weighed approximately 600 pounds at the time of the hearing. The claimant was advised by his physicians that he needed to have surgery on his ankle. However, in order for the ankle surgery to be successful, the claimant first needed to lose a considerable amount of weight. The claimant attempted to lose weight through a weight loss program via telephone but was unsuccessful because he was unable to exercise due to the ankle injury and he could not afford to pay for the recommended food.
The claimant's primary care physician, Dr. Westbrook, referred the claimant for a gastric bypass surgery consultation. Dr. Westbrook opined that gastric bypass surgery should be explored before the claimant was placed at MMI. A psychologist, Gary Feldman, Ph.D., also agreed that the claimant was a good surgical candidate for bypass surgery.
Dr. Beatty performed an independent medical examination at the respondents' request. Dr. Beatty determined that the claimant reached MMI because he was not a good candidate for the ankle surgery. The respondents then requested a DIME under the 18 Month DIME provisions in § 8-42-107(8)(b)(II), C.R.S. The DIME was performed by Dr. Watson. The DIME agreed with Dr. Beatty that the claimant was not a good candidate for the ankle surgery and placed the claimant at MMI on November 11, 2009. The DIME did not address the possibility of a gastric bypass surgery in his report.
After the DIME, the claimant went to a surgical consultation with Dr. Vigil, a gastric bypass surgeon. Dr. Vigil's report states that the claimant was a good candidate for gastric bypass surgery. At the claimant's request, Dr. Healey performed an examination of the claimant. Dr. Healey agreed that the claimant should undergo the gastric bypass and ankle surgery in order to have any prospect of returning to work or any relief from his chronic pain.
The ALJ found the opinions of Drs. Westbrook, Feldman, Vigil and Healey to be credible and persuasive in overcoming the DIME's MMI opinion by clear and convincing evidence. The ALJ found that the claimant needs an ankle fusion to cure and relieve him from the effects of his industrial injury, but that he could not have the surgery until he loses a considerable amount of weight. Because the claimant needs to lose a considerable amount of weight for the ankle surgery to be successful, the ALJ determined that the gastric bypass surgery was reasonable, necessary and related to the claimant's industrial injury. The ALJ also ordered the respondents to reinstate temporary disability benefits from the date those benefits were discontinued.
The respondents now appeal arguing that the ALJ erred in her determination that the DIME was overcome by clear and convincing evidence. The respondents also contest the ALJ's conclusion that the claimant's need for the gastric bypass surgery is related to the industrial injury.
The MMI opinion of a DIME is binding on the parties unless it is overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S.; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Qual-Med., Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998). "Clear and convincing evidence means evidence which is stronger than a mere `preponderance;' it is evidence that is highly probable and free from serious or substantial doubt." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Therefore, the party challenging a DIME physician's conclusion must demonstrate that it is "highly probable" that the DIME's MMI finding is incorrect. Qual-Med, 961 P.2d at 592. A party meets this burden if the party demonstrates that the evidence contradicting the DIME is "unmistakable and free from serious or substantial doubt." Leming v. Industrial Claim Appeals Office, 62 P.3d 1015 (Colo. App. 2002).
Whether a party has met the burden of overcoming a DIME by clear and convincing evidence is a question of fact for the ALJ. Metro Moving and Storage, supra. We must uphold the ALJ's factual determinations if the decision is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review is deferential and the scope of our review is "exceedingly narrow." Metro Moving Storage supra. In our view there is substantial evidence to support the ALJ's findings that the claimant overcame the DIME's MMI opinion by clear and convincing evidence.
The ALJ concluded that the DIME's MMI date of November 11, 2009 was most probably incorrect because the claimant requires an ankle surgery to cure and relieve him of the effects of the industrial injury. ALJ Order at 5 ¶ 5. The ALJ further determined that the DIME's failure to consider gastric bypass surgery as an option to assist the claimant in losing weight which would allow the claimant to undergo the ankle surgery, makes the DIME's determination most probably incorrect. ALJ Order at 5 ¶ 5. In making this determination, the ALJ relied on the opinions of Drs. Westbrook, Feldman and Healey and Vigil.
In a report dated February 12, 2008, Dr. Westbrook stated that the claimant needed an ankle fusion but at the claimant's current weight he would have increased pain. Dr. Westbrook noted that the claimant had tried to lose weight with a dietary program but that a weight program alone would not take care of the problem because the claimant was unable to exercise because of the ankle injury. Dr. Westbrook, therefore, referred the claimant for an evaluation for a gastric bypass.
In a report dated November 12, 2008, Dr. Feldman states that the claimant is psychologically an "excellent candidate" for bariatric surgery and that this will greatly assist his overall functional restoration. The May 12, 2010, report from Dr. Healey states that the claimant is not at MMI because he needs ankle surgery. Dr. Healey goes on to state that the claimant will not have a good outcome with the ankle surgery unless he loses at least 200 pounds and, therefore, the need for a gastric bypass is related to the industrial injury.
In his report dated November 18, 2010, Dr. Vigil concludes that the claimant was a candidate for gastric bypass for the treatment of his morbid obesity which is complicating and aggravating his work related condition. Dr. Vigil further states that gastric bypass surgery offers the claimant the only reasonable option for immediate, effective, and sustainable weight loss.
We are not persuaded by the respondents' assertion that the ALJ relied only on the "mere difference of opinion" of Dr. Healey to overcome the DIME opinion. Respondents' Brief at 4. The ALJ credited the opinions of Drs. Westbrook, Feldman and Vigil, in addition to Dr. Healey, to support her conclusion that the claimant needed an ankle surgery and in order for that ankle surgery to be successful, the claimant needed a gastric bypass to lose weight.
The respondents take issue with the fact that the DIME did not have the report of Dr. Vigil at the time of his examination and assert that the DIME was not "required" to evaluate the necessity of a gastric bypass. The medical reports from Dr. Westbrook and Dr. Feldman did address the possibility of gastric bypass surgery and these reports are mentioned in the DIME's report. Although the DIME was not required to evaluate the necessity of the gastric bypass surgery, the fact that he failed to do so went to the weight and credibility the ALJ chose to assign to the DIME's opinion.
The respondents also argue that the claimant's need for a gastric bypass is not related and that this case is factually distinguishable from Public Service Company v. Industrial Claim Appeals Office of Colorado, 979 P.2d 584 (Colo. App. 1999). We disagree.
The Workers' Compensation Act imposes upon every employer the duty to furnish such medical treatment "as may reasonably be needed at the time of the injury . . . and thereafter during the disability to cure and relieve the employee from the effects of the injury." Section 8-42-101(1)(a), C.R.S. That duty includes furnishing treatment for conditions representing a natural development of the industrial injury, as well as providing compensation for incidental services necessary to obtain the required medical care. Employers Mutual Insurance Co. v. Jacoe, 102 Colo. 515, 81 P.2d 389 (1938); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo. App. 1995). The duty has been construed to also include paying for treatment of unrelated conditions when such treatment is necessary to achieve optimum treatment of the industrial injury. Public Service Co. v. Industrial Claim Appeals Office, supra. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). In the Public Service Co. case, the court emphasized the factual nature of this determination. 979 P.2d at 585.
Here, the ALJ relied on the opinions of Drs. Westbrook, Feldman, Healey and Vigil, to conclude a gastric bypass is necessary to achieve optimum treatment of the industrial injury. ALJ Order at 6 ¶ 10-12. The respondents allege that because the claimant was overweight prior to the injury, the gastric bypass is not "ancillary" to the work-related injury. Respondents' Brief at 7. The respondents' notion of "ancillary" is too narrow in this context. Contrary to the respondents' argument, under the principles of Public Service Co. it is not necessary that there be a direct causal relationship in order for such treatment to be compensable. Rather, such treatment is compensable if it is necessary to achieve optimum treatment of the industrial injury, which the ALJ found to be the case here.
The respondents also raise "pseudo-policy arguments" on the inequities of requiring payment for such a treatment. Respondents' Brief at 8. However, we do not believe that the policy considerations raised by the respondents require a different result in this case. Weight loss programs, including gastric bypass surgery, have been awarded as a compensable medical benefit in Colorado, ( Cervantes v. Academy School District W.C. 4-604-873 (May 23, 2005)), and in many other jurisdictions. See 5 Larson, Workers' Compensation Law, § 94-03(3)(d) and § 94.03(5); See eg Matter of Laezzo v. New York State Thruway Auth., 896 N.Y.S. 2d 257, (2010) (court affirmed award for gastric bypass finding substantial evidence supported the workers' compensation that significant weight loss would lessen pain associated with his compensable back and knee injuries and that the only practical way to attack such weight loss was through the surgery); In re Compensation of Sprague, 217 P.3d 644, 346 Or. 661 (2009) (Court approved bypass surgery finding that the weight loss was necessary for the effective treatment of the work-related injury to the knee); PS2, LLC v. Childers, 910 N.E.2d 809 (Ind. Ct. App. 2009); Hopp v. Grist Mill, 499 N.W.2d 812 (Minn. 1993). We do not read the ALJ's order in this case as departing from established case law or the principles of the Act.
The resolution of this case required the ALJ to determine the weight and credibility to be assigned to the expert opinions and testimony presented. This is a matter within the sole discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, supra. The opinions Drs. Westbrook, Feldman, Healey and Vigil provide substantial evidence and valid support for the ALJ's conclusion that the claimant overcame the DIME by clear and convincing evidence and that a gastric bypass is reasonable, necessary and related medical treatment. Therefore, we may not disturb the order on review. Section 8-43-301 (8), C.R.S.
The respondents made a general allegation in the petition to review that the record lacks substantial evidence to support the award of temporary total disability benefits. However, the respondents do not raise any arguments specific to temporary disability in the brief. We perceive no reversible error in the ALJ's award of temporary disability benefits. The ALJ findings indicate that the claimant established a disability and the respondents terminated temporary disability benefits based on the DIME's MMI findings. ALJ Order at 6 ¶ 14. Therefore, since the ALJ determined that the claimant was not at MMI, temporary disability benefits should continue until terminated in accordance with the statute. Section 8-42-105(3)(a-d), C.R.S. IT IS THEREFORE ORDERED that the ALJ's order dated June 2, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John Baird
________________________________ Brandee DeFalco-Galvin
AMERICAN HOME ASSURANCE COMPANY, Attn: WC CLAIMS SPECIALIST-MELISSA CARTER, C/O: SEDGWICK CMS, P O BOX 14493, LEXINGTON, KY, (Insurer)
LAW OFFICE OF STEVEN H. GURWIN, Attn: STEVEN H. GURWIN, ESQ., DENVER, CO, (For Claimant)
TREECE, ALFREY, MUSAT BOSWORTH, P.C., Attn: JAMES B. FAIRBANKS, ESQ., DENVER, CO, (For Respondents)