Industrial Claim Appeals Office of the State of Colorado WC
Merkel Law Firm, LLC, Penny M. Merkel, Denver, Colorado, for
Appearance for Respondent Industrial Claim Appeals Office
Dumm Mayer, PC, Bernard R. Woessner, Kaitlin M. Akers,
Denver, Colorado, for Respondents Cherry Creek School
District and Joint School District C/O CCMSI
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.
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
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.
Reopening Is Not Necessary to ...