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Bolton v. Industrial Claim Appeals Office of State of Colorado

Court of Appeals of Colorado, Frist Division

March 21, 2019

Jennifer Bolton, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Cherry Creek School District, and Joint School District C/O CCMSI, Respondents.

          Industrial Claim Appeals Office of the State of Colorado WC No. 4-935-211

          The Merkel Law Firm, LLC, Penny M. Merkel, Denver, Colorado, for Petitioner

          No Appearance for Respondent Industrial Claim Appeals Office

          Nathan Dumm Mayer, PC, Bernard R. Woessner, Kaitlin M. Akers, Denver, Colorado, for Respondents Cherry Creek School District and Joint School District C/O CCMSI

          ORDER AFFIRMED

          BERGER JUDGE.

         ¶ 1 Claimant, Jennifer Bolton, seeks review of a final order of the Industrial Claim Appeals Office (Panel), affirming the decision of an administrative law judge (ALJ) discontinuing her maintenance medical benefits. She contends that the only permissible procedural avenue for discontinuing her maintenance medical benefits was reopening the claim under section 8-43-303(1), C.R.S. 2018. Because her employer did not seek to reopen the claim, claimant contends we must set aside the Panel's order. We disagree that under the circumstances of this case reopening was required. Because we also conclude that the ALJ's factual findings are supported by the record, we affirm the Panel's order.

         I. Background

         ¶ 2 Claimant teaches in the Cherry Creek School District (employer). On November 15, 2013, she sustained admitted work-related injuries when she fell backwards to the ground, suffering low back pain, headache, and dizziness. Physicians who treated her the day of the incident diagnosed a concussion as well as cervical and lumbar strains.

         ¶ 3 Within a few months, though, claimant developed "clinically significant depression" related to the work injury. Although her psychologist suggested the "depression may be long-standing in nature," employer admitted the compensability of claimant's depression treatment.

         ¶ 4 In October 2015, a physician who performed a division-sponsored independent medical examination placed claimant at maximum medical improvement (MMI) with an impairment rating of nine percent of the whole person.

         ¶ 5 Under the terms of a settlement agreement the parties reached in February 2016, which was approved by an ALJ, employer paid claimant a lump sum for her permanent partial disability award. In addition, employer agreed to continue paying for "maintenance care through authorized providers that is reasonable, necessary and related to this compensable injury." Initially, claimant's maintenance medical treatment included chiropractic care, but that was discontinued. Within months of reaching the agreement, the primary maintenance medical treatment claimant was receiving was psychological and/or psychiatric services.

         ¶ 6 Several months later, employer retained the services of a psychiatrist, Dr. Robert Kleinman, to examine claimant to determine if the psychological and psychiatric benefits continued to be "reasonable, necessary and related to [her] compensable injury." According to his report, claimant told Dr. Kleinman that "prior to 2010, she had never been depressed and had not been treated for depression." But, at the hearing on discontinuation of the maintenance benefits he testified that he later learned that claimant inaccurately self-reported her history, and that, in fact, she had been treated for depression as early as 2008 and had been diagnosed with "longstanding depression." After reviewing additional medical records predating the work injury, Dr. Kleinman opined that claimant continued to be at MMI and that she "has a history of depression accompanied by anxiety. This injury did not cause any permanent changes. This injury caused a temporary exacerbation in her major depression and anxiety disorder, with features of post-traumatic stress disorder. She has returned to baseline." Dr. Kleinman therefore concluded that claimant required no further maintenance medical care related to the work injury.

         ¶ 7 Several health care providers echoed Dr. Kleinman's opinion. Claimant's authorized treating physician, Dr. Alisa Koval, wrote in December 2016, "[a]t this point in time, [claimant] is being treated primarily for her mental health conditions. She is very close to reaching the baseline at which she lived prior to the incident, and I am optimistic that with continued psychotherapy and medication management, she will get there." And, two neuropsychologists who examined claimant, Dr. Suzanne Kenneally and Dr. Rebecca Hawkins, opined that claimant sustained an "uncomplicated" concussion at work, but that her profile indicated longstanding depression.

         ¶ 8 Based on Dr. Kleinman's opinion, as well as those of the treating health care providers who noted claimant's pre-existing depression, employer petitioned to terminate claimant's maintenance medical benefits. Employer argued that it was only required to cover related medical expenses, and that, because claimant had reached her pre-injury baseline, any psychological or psychiatric care required from that time forward was unrelated to the work-related injury and therefore noncompensable.

         ¶ 9 The ALJ agreed. The ALJ found that claimant had minimized the extent of her pre-existing depression. The ALJ was persuaded by Dr. Kleinman's testimony that claimant's continuing need for maintenance care for her depression was no longer related to the work injury but was instead necessitated by her longstanding depression. The ALJ therefore concluded that employer had met its burden of establishing "that previously admitted medical maintenance benefits are not causally related to the occupational injury that occurred on November 15, 2013," and that "based on the totality of the evidence, . . . [c]laimant functions at the same baseline level she functioned at before the work injury." The ALJ consequently terminated employer's liability for claimant's ongoing maintenance treatment.

         ¶ 10 The Panel affirmed. It rejected claimant's contention that her maintenance medical benefits could be terminated only if the employer had first successfully reopened the claim. The Panel held instead that because employers retain the right to challenge the relatedness of any medical maintenance treatment, reopening is not required to challenge future medical benefits.

         II. Reopening Is Not Necessary to ...


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