In re Morey, W.C. No

Industrial Claim Appeals OfficeMay 6, 1998
W.C. No. 4-209-493 (Colo. Ind. App. May. 6, 1998)

W.C. No. 4-209-493

May 6, 1998


FINAL ORDER

The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which limited his award of ongoing medical benefits, and denied the claim for permanent total disability benefits. We modify the order with respect to medical benefits, and affirm the denial of permanent total disability benefits.

The ALJ found that the claimant sustained a compensable back injury in April 1994. The claimant underwent a diskectomy at the L4-5 level, and also suffered from depression as a result of this injury.

In January 1996, one of the treating physicians placed the claimant at maximum medical improvement (MMI) for the back injury and assessed a fourteen percent whole person impairment. The treating psychologist placed the claimant at MMI for the depression on October 22, 1996, and assessed no additional permanent impairment. However, the psychologist prescribed six months of additional psychotherapy.

In view of this evidence, the ALJ found the claimant is entitled to "medical benefits after" MMI for purposes of receiving the psychotherapy sessions through April 1997. However, the ALJ held that the claimant is not entitled to any other medical benefits after MMI because none of the medical records indicate that he needs such treatment "from a physical perspective."

With respect to permanent total disability, the ALJ found that the effects of the injury preclude the claimant from returning to his pre-injury employment as a glazier. However, the ALJ credited the testimony of the respondents' vocational expert that the claimant remains employable in "numerous occupations" including customer service, assembly, sales, greeter, cashier and dispatcher. The ALJ also relied on the vocational expert's testimony that the claimant is eligible for "sixteen jobs which are currently available to a person with claimant's permanent physical restrictions, including three jobs as a National Park gate attendant." The expert's opinions were predicated on the results of a functional capacity evaluation (FCE) performed in March 1996.

In view of her findings, the ALJ concluded that the claimant is able to earn wages, and therefore, is not permanently and totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. 1997. The ALJ stated that in reaching this conclusion she considered numerous factors including the claimant's physical condition, mental capability, and the availability of work which the claimant can perform.

I.

On review, the claimant contends the ALJ erred in "restricting" the award of ongoing medical benefit to psychiatric care through the end of April 1997. The claimant argues that under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), the ALJ may not restrict either the type or duration of the claimant's medical benefits. We agree with this argument.

In Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992), the Court of Appeals established a two-step procedure for determining whether it is proper to award ongoing medical benefits under Grover. The court held that an ALJ must first determine whether there is substantial evidence in the record demonstrating a reasonable necessity for future medical treatment. If substantial evidence exists, then a "general order, similar to that described in Grover should be entered." 860 P.2d at 542.

In view of this two-step procedure, we held in Hesse v. Hesse, W.C. No. 4-176-922 (May 9, 1996), that the ALJ erred in limiting the claimant's Grover medical benefits to three post-MMI physical therapy treatments. In Hesse, the ALJ's finding that the claimant needed additional physical therapy represented "substantial evidence that the claimant was entitled to medical benefits under Grover." Therefore, in view of the requirement for a "general order," we held there was "no authority for arbitrarily terminating the claimant's right to future medical treatment once it has been established." See also, Blackwell v. Michael Walsh d/b/a Advanced Concepts, W.C. No. 4-122-303 (December 17, 1997).

Thus, the mere fact that the claimant failed to demonstrate the need for ongoing "physical treatment" is of no significance. The ALJ's finding that the claimant proved a need for post-MMI psychological treatment demonstrates that there was substantial evidence that the claimant would need future medical treatment to cure and relieve from the effects of the injury. Having found that the claimant carried his burden of proof, the ALJ should have entered a "general order" for Grover medical treatment without regard to the fact that the claimant failed to prove the need for any "physical" treatment. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995) (claimant need not prove that a particular or specific course of treatment is anticipated in order to prove entitlement to Grover medical benefits).

Of course, this does not mean the respondents are required to pay for all post-MMI medical treatment. To the contrary, Grover itself indicates that respondents may contest the reasonableness or necessity for particular treatments. Moreover, the respondents may seek to reopen and demonstrate there is no longer any evidence that the claimant needs future medical treatment. Grover v. Industrial Commission, 759 P.2d at 712.

Under these circumstances, the ALJ's order must be amended to reflect that the claimant is entitled to such ongoing medical benefits as are reasonable and necessary to cure and relieve the effects of the industrial injury. Insofar as the respondents wish to dispute the reasonableness or necessity of particular treatments, they are free to do so in accordance with the statute and the Rules of Procedure. In light of this disposition, we need not consider the claimant's other argument that the ALJ erred in finding that there is no medical evidence of the need for ongoing treatment of the physical condition.

II.

The claimant next contends that the ALJ erred in denying the claim for permanent total disability benefits. Specifically, the claimant argues that the ALJ's findings of fact are not supported by substantial evidence in the record. We find no reversible error.

Under § 8-40-201(16.5)(a), the claimant carries the burden to prove he is unable to earn "any wages" in order to establish entitlement to permanent total disability benefits. The question of whether the claimant carried his burden of proof is one of fact for determination by the ALJ. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). In evaluating this question, the ALJ is free to consider the relevant "human factors" including the claimant's physical condition, mental ability, age, employment history, education, and the availability of work which the claimant is able to perform. Weld County School District RE-12 v. Bymer, ___ P.2d ___ (Colo. 1998); Best-Way Concrete Co. v. Baumgartner, supra.

Because these issues are factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, it was for the ALJ to assess the weight and credibility of the evidence, as well as the plausible inferences to be drawn from it. Weld County School District RE-12 v. Bymer, supra. Further, even an erroneous finding does not require reversal if it does not prejudice the substantial rights of the parties. See § 8-43-310, C.R.S. 1997; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).

The claimant first contends that the ALJ's order confuses the concepts of "restriction" and "limitation." Specifically, the claimant attacks the ALJ's Finding of Fact 7, in which the ALJ found that the results of the FCE do not support the claimant's testimony that he is required to lie down up to ninety percent of the day. The claimant reasons that "restrictions" are imposed by physicians, while "limitations" are essentially self-imposed. We disagree with the claimant's analysis.

As we understand the ALJ's order, she found that the FCE addresses the claimant's restrictions and limitations, and she was not persuaded by the claimant's testimony that his limitations are greater than those stated in the FCE. For instance, the FCE establishes work "tolerance recommendations." These recommendations indicate that the claimant is restricted to sitting for no more than three to four hours during a workday. Moreover, the claimant is limited to sitting for no more than thirty minutes at any one time.

Further, as the respondents point out, the ALJ was not required to credit the claimant's testimony. The ALJ inferred that the testimony was not credible in view of the results of the FCE, and we decline the claimant's invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the evidence. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ need not credit testimony of witness even if uncontradicted).

The claimant next contends that the ALJ erred in finding that his "future employment dreams" of running a campground were relevant. The claimant argues that this "future employment dream" would only be relevant if the ALJ awarded the claimant sufficient funds to make the dream a reality. We are not persuaded.

In our view, the claimant's testimony that he could run a campground was relevant to the issue of whether he has the ability to earn any wages. The testimony reflects the claimant's own belief that he has managerial skills which could transfer to new employment. Therefore, it was for the ALJ to assess the weight of this evidence, and she committed no error in considering it.

Finally, the claimant contends the ALJ erred in finding that he can perform work as a gatekeeper at a national park. The claimant argues there are no national parks in the Colorado Springs area. However, even if there are no national parks in the Colorado Springs area, we do not believe this finding constitutes reversible error.

During the course of the hearing, the respondents' vocational expert testified that she performed a labor market survey and found the claimant could work as a "seasonal entrance attendant" at a state park. She also indicated the claimant could work as a "gate attendant" at an El Paso County visitors center. Finally, she stated the claimant could work as a gate attendant at a Pueblo campground. (Tr. p. 41).

It is true the record does not demonstrate the claimant can perform work as a gatekeeper in a "national park." Nevertheless, the record indicates the claimant can perform similar jobs in state parks and campgrounds. Therefore, the erroneous reference to national parks is harmless because it did not affect the claimant's substantial rights.

IT IS THEREFORE ORDERED that the ALJ's order dated March 13, 1997, is modified to reflect a "general order" for Grover medical benefits.

IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed May 6, 1998 to the following parties:

Burl C. Morey, P.O. Box 401, Manitou Springs, CO 80829

Ryan Glass, Inc., 1630 Tuskegee Pl., Colorado Springs, CO 80915-2655

Laurie Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail

William C. Alexander, Jr., Esq. and Joseph Ricci, Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)

Thomas Stern, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For Respondents)

By: _________________________