Bolton v. Industrial Claim Appeals Office

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 21, 2019

2019COA47

No. 18CA0888, Bolton v. ICAO — Labor and Industry —
Workers’ Compensation — Settlement and Hearing Procedures

The division holds that employers seeking to discontinue

maintenance medical benefits once an employee has reached

maximum medical improvement after a claim has otherwise closed

need not first seek to reopen the claim. This is so because a claim

remains open to the extent maintenance medical benefits will be

disbursed in the future, and therefore the claim is not closed as to

those future benefits and reopening is unnecessary to discontinue

them.
COLORADO COURT OF APPEALS 2019COA47

Court of Appeals No. 18CA0888
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-935-211

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.

ORDER AFFIRMED

Division I
Opinion by JUDGE BERGER
Taubman and Tow, JJ., concur

Announced March 21, 2019

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
¶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

1
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

2
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

3
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

4
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 Discontinue Future Maintenance
Medical Benefits

¶ 11 Claimant first contends that employer was required to seek

reopening of the claim to terminate all future maintenance medical

benefits. She argues that although reopening is not required to

challenge a particular medical treatment, when, as here, the

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employer seeks to terminate all future medical benefits, reopening

is the only permissible procedure. We conclude that the Panel

correctly applied the applicable statutes.

A. Rules of Statutory Construction and Standard of Review

¶ 12 When we interpret a provision of the Workers’ Compensation

Act of Colorado (Act), such as the reopening statute, “we interpret

the statute according to its plain and ordinary meaning” if its

language is clear. Davison v. Indus. Claim Appeals Office, 84 P.3d

1023, 1029 (Colo. 2004). In addition, “when examining a statute’s

language, we give effect to every word and render none superfluous

because we ‘do not presume that the legislature used language idly

and with no intent that meaning should be given to its language.’”

Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo.

2008) (quoting Colo. Water Conservation Bd. v. Upper Gunnison

River Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)).

¶ 13 We review questions of statutory construction de novo. Ray v.

Indus. Claim Appeals Office, 124 P.3d 891, 893 (Colo. App. 2005),

aff’d, 145 P.3d 661 (Colo. 2006). Although we usually defer to the

Panel’s reasonable interpretations of the statute it administers,

Sanco Indus. v. Stefanski, 147 P.3d 5, 8 (Colo. 2006), we are not

6
bound by the Panel’s interpretation or its earlier decisions. Olivas-

Soto v. Indus. Claim Appeals Office, 143 P.3d 1178, 1180 (Colo. App.

2006). We will set aside the Panel’s legal interpretation “if it is

inconsistent with the clear language of the statute or with the

legislative intent.” Town of Castle Rock v. Indus. Claim Appeals

Office, 2013 COA 109, ¶ 11 (quoting Support, Inc. v. Indus. Claim

Appeals Office, 968 P.2d 174, 175 (Colo. App. 1998)), aff’d, 2016

CO 26.

B. The Statute Was Correctly Applied

¶ 14 Claimants are entitled to seek maintenance medical benefits

post-MMI, Grover v. Indus. Comm’n, 759 P.2d 705, 710 (Colo. 1988),

but employers retain the right to challenge the “need for continued

medical benefits,” Snyder v. Indus. Claim Appeals Office, 942 P.2d

1337, 1339 (Colo. App. 1997). Employers bear the burden of proof

to modify future maintenance medical benefits. § 8-43-201(1),

C.R.S. 2018.

¶ 15 Although these are well-established doctrines, claimant

asserts her situation is unique (presumably because of the

7
stipulation and final admission of liability) 1 and requires an

additional procedural step before her maintenance medical benefits

could be terminated. She argues that because her claim had

closed, employer could only modify her maintenance medical

benefits by first seeking to reopen the claim. Either party may seek

to reopen a closed claim “on the ground of fraud, an overpayment,

an error, a mistake, or a change in condition.” § 8-43-303(1).

¶ 16 We reject claimant’s attempt to distinguish her situation from

others in which post-MMI maintenance is ordered by an ALJ. The

stipulation entered into by claimant is consistent with these legal

principles and does not support her uniqueness argument. The

stipulation (which was approved by an ALJ) specifically provided

that “Respondent additionally agrees to file a Final Admission

referencing this Stipulation and resolution of the current claims for

[permanent partial disability], and admitting for maintenance care

through authorized providers that is reasonable, necessary and

related to this compensable injury.” (Emphasis added.)

1 The stipulation and the ALJ order approving it are in the appellate
record, as is the final admission of liability.

8
¶ 17 In Grover, the supreme court recognized two different methods

to challenge maintenance medical benefits. Employers have the

right to “contest any future claims for medical treatment on the

basis that such treatment is unrelated to the industrial injury or

occupational disease.” Grover, 759 P.2d at 712.

¶ 18 An employer may also challenge future claims for medical

treatment by reopening the claim. The court explained:

[T]he reopening provision of section 8-53-113
[now codified at section 8-43-303] is designed
to address those situations in which, because
of an error, mistake, or change in the injured
worker’s condition, further review of a
previously entered award is necessary in the
interest of basic fairness. At the time a final
award is entered, available medical
information may be inadequate, a diagnosis
may be incorrect, or a worker may experience
an unexpected and unforeseeable change in
condition subsequent to the entry of a final
award. When such circumstances occur,
section 8-[43-303] provides recourse to both
the injured worker and the employer by giving
either party the opportunity to file a petition to
reopen the award.

Grover does not, however, resolve whether the employer may choose

which alternative to take, or whether, under some circumstances,

the employer must reopen the award.

9
¶ 19 Having reviewed the pertinent statutory provisions, we agree

with the Panel’s interpretation that reopening is not necessary in

this case.

¶ 20 Issues or claims that are not closed need not be reopened.

The Act, in fact, anticipates that claims may not fully close.

Specifically, the Act does not state that an entire claim is closed by a

decision or final admission of liability (FAL). Rather, the Act

discusses the closure of issues. As claimant herself points out, the

Act provides that “[a]n admission of liability for final payment of

compensation must include . . . notice to the claimant that the case

will be automatically closed as to the issues admitted in the final

admission.” § 8-43-203(2)(b)(II)(A), C.R.S. 2018 (emphasis added).

Further, “[o]nce a case is closed pursuant to this subsection (2), the

issues closed may only be reopened pursuant to section 8-43-303.”

§ 8-43-203(2)(d) (emphasis added). Thus, under the express

language of the statute claimant cites, a FAL does not necessarily

close an entire claim; some issues may remain open and litigable.

But, issues which have closed can only be addressed later through

reopening.

10
¶ 21 The reopening statute uses slightly different language,

permitting the reopening of “any award on the ground of fraud, an

overpayment, an error, a mistake, or a change in condition . . . . If

an award is reopened on grounds of error, a mistake, or a change in

condition, compensation and medical benefits previously ordered

may be ended, diminished, maintained, or increased.” § 8-43-

303(1) (emphasis added).

¶ 22 We must reconcile, to the extent possible, these different

provisions of the Act. See Lombard, 187 P.3d at 571; Berthold v.

Indus. Claim Appeals Office, 2017 COA 145, ¶ 30 (“[W]e must view

the Act as a whole and strive to harmonize its provisions because

‘[a] comprehensive statutory scheme should be construed in a

manner which gives consistent, harmonious, and sensible effect to

all parts of the statute.’” (quoting Salazar v. Indus. Claim Appeals

Office, 10 P.3d 666, 667 (Colo. App. 2000))).

¶ 23 Notably, the reopening statute does not address “claims,”

either; rather, it pertains to “awards.” “Award” is defined as “[a]n

order, whether resulting from an admission, agreement, or a

contested hearing, which addresses benefits and which grants or

denies a benefit.” Burke v. Indus. Claim Appeals Office, 905 P.2d 1,

11
2 (Colo. App. 1994). An award does not necessarily encompass

every facet of a claim. To the contrary, an order may expressly

reserve issues to be decided later. See Hire Quest, LLC v. Indus.

Claim Appeals Office, 264 P.3d 632, 634 (Colo. App. 2011)

(entitlement to future medical benefits not waived where issue was

not decided by ALJ and ALJ’s order expressly reserved undecided

issues for future determination). Further, because issues may

remain open, an order can be final even though “it does not dispose

of all issues raised” so long as it grants or denies the payment of a

benefit. Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d

680, 684 (Colo. App. 1999). Thus, the Act as a whole anticipates

that issues within a claim may remain open and subject to further

litigation.

¶ 24 Because future maintenance medical benefits are, by their

very nature, not yet awarded, those benefits remain open and are

not closed by an otherwise closed FAL. See Hire Quest, 264 P.3d at

634; Hanna v. Print Expediters Inc., 77 P.3d 863, 866 (Colo. App.

2003).

¶ 25 Because claimant was entitled to receive future ongoing

maintenance medical benefits for her depression, that issue was not

12
closed, and reopening was not required to assess the relatedness

and necessity of claimant’s continuing depression treatment.

¶ 26 The Panel’s order recognizes this distinction between open and

closed issues. The Panel has long held that an employer need not

reopen a claim “before seeking to terminate its liability for

maintenance medical benefits for the same reason.” Arguello v.

Colorado, W.C. No. 4-762-736-04, 2016 WL 2619514, at *3 (Colo.

I.C.A.O. May 3, 2016). The Arguello panel noted that while a claim

“may be closed by a ‘final award’” and therefore must be reopened

to pursue further litigation, ongoing medical maintenance claims

necessarily leave open that issue for future determination. The

Panel also cited the well-established principle that employers retain

the right to challenge maintenance as unrelated 2 to the work injury,

unreasonable, or unnecessary. In our view, this analysis is

consistent with the legislative intent, and we therefore perceive no

reason to stray from it. See Town of Castle Rock, ¶ 11.

2 For maintenance benefits to be “related” they must have “an
inherent connection” to the work injury. See Horodyskyj v.
Karanian, 32 P.3d 470, 476 (Colo. 2001) (Incidents which are
“inherently related to employment[] are those that have ‘an inherent
connection with employment and emanate from the duties of the
job.’” (quoting Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991))).

13
¶ 27 Claimant sidesteps the distinction between open and closed

issues by characterizing the ALJ’s decision as overturning the

original causation determination. While there is troubling language

in the ALJ’s order regarding claimant’s minimization of her

psychiatric history that long predated the petition to terminate the

maintenance benefits, in the end, we do not read the ALJ’s order as

revisiting the causation admission inherent in the stipulation and

resulting FAL.3 The ALJ’s order is devoid of findings that claimant

did not suffer a compensable injury or that her injuries were not

caused by her work-related fall. Nor did the ALJ find or employer

even contend that treatment claimant had already received was

unreasonable or not causally related to her work injury. In short,

there was no repudiation of the earlier causation determination.

¶ 28 Rather, the ALJ found that claimant’s condition had improved

to her pre-injury level and that, consequently, any future treatment

was no longer work-related. As discussed above, even when

3 We agree with claimant that any prior minimization of her
psychiatric history was irrelevant to the question whether the
maintenance benefits were reasonable, necessary, and related to
the compensable injury. Before entering into the stipulation and
filing its FAL, the employer could have challenged this causal
relationship. But it did not, and it is bound by its stipulation.

14
causation is admitted, an employer does not forfeit the right to

challenge the relatedness of treatment, which is precisely what

employer did here. See Snyder, 942 P.2d at 1339 (“An employer

who has admitted liability for medical benefits can dispute a

claimant’s need for continued medical benefits.”).

¶ 29 We therefore conclude that the Panel correctly determined that

employer was not required to reopen the claim to challenge

claimant’s need for continuing medical care. 4

C. Substantial Evidence Supported the ALJ’s Decision

¶ 30 Whether the requested continued maintenance medical care is

related, reasonable, and necessary is a question of fact for the ALJ’s

determination. See id.

¶ 31 Here, the ALJ found credible and persuasive the opinions of

several physicians and health care providers who concurred that

claimant had reached her pre-injury level of functioning and that

4 We also note that the burden and standard of proof remain the
same whether a challenge to maintenance benefits is made as here,
or in a reopening proceeding. In both circumstances, the employer
has the burden of proof and in both the burden is preponderance of
the evidence. Claimant does not explain how or why the result
would have been different even if employer was required to reopen
the claim.

15
any subsequent treatment would not be work-related. Most

notably, Dr. Kleinman reported that claimant had suffered from

depression for many years prior to the 2013 work injury. He opined

that although claimant would need continued medical intervention

to keep her condition under control, the effects of the work injury

had dissipated and she had “returned to baseline,” alleviating the

need for work-related medical care. As early as 2016, Dr. Koval

likewise opined that claimant would soon return to her baseline.

And, Doctors Kenneally and Hawkins, both neuropsychologists,

concluded that claimant had suffered longstanding depression

which predated her work injury.

¶ 32 This evidence amply supports the ALJ’s factual finding that

claimant’s continuing need for medical care was no longer work-

related. Consequently, we cannot set aside the Panel’s order

affirming the ALJ’s termination of ongoing maintenance medical

care. See id.

III. Intervening Cause

¶ 33 Claimant also contends that the Panel improperly attributed

her need for continuing treatment to “the presence of an efficient

intervening cause.” She argues that “no such intervening accident

16
or injury ever occurred” and that the Panel read into the case facts

and arguments that no party had introduced. This error, she

contends, is a misapplication of the law that requires us to set aside

the Panel’s decision. We conclude that any error committed by the

Panel in discussing intervening cause is harmless and does not

provide a basis for setting aside its order.

¶ 34 “Intervening cause is a negligence concept that relieves a

defendant from liability if the intervening cause was not reasonably

foreseeable. It is not a defense to a strict liability claim.” White v.

Caterpillar, Inc., 867 P.2d 100, 109 (Colo. App. 1993). The term is

also used in the definition of “but for” causation:

The test for causation is the “but for” test —
whether, but for the alleged negligence, the
harm would not have occurred. The
requirement of “but for” causation is satisfied
if the negligent conduct in a “natural and
continued sequence, unbroken by any
efficient, intervening cause, produce[s] the
result complained of, and without which the
result would not have occurred.”

N. Colo. Med. Ctr., Inc. v. Comm. on Anticompetitive Conduct, 914

P.2d 902, 908 (Colo. 1996) (quoting Smith v. State Comp. Ins. Fund,

749 P.2d 462, 464 (Colo. App. 1987)). As claimant implies, the

definition suggests that the term is most frequently used to describe

17
an event or action that causes a new injury, thereby interrupting

the original negligent party’s liability.

¶ 35 We agree that the Panel erred by addressing the concept of

intervening cause. However, any error was harmless. It is clear

from the Panel’s order that it found record support for the ALJ’s

conclusion that claimant had returned to baseline and that any

further treatment was related to claimant’s pre-injury condition, not

to her work-related injury. Even though claimant’s pre-injury

depression was not an “efficient intervening cause,” this was not the

basis of the Panel’s decision. Instead, the Panel held that the

record supports the ALJ’s finding that claimant’s future need for

care related exclusively to her pre-existing condition.

¶ 36 Because substantial evidence in the record supports the ALJ’s

finding that future treatment was no longer work-related, we cannot

set aside the order affirming the decision to terminate future

maintenance medical benefits. See Snyder, 942 P.2d at 1339.

IV. Conclusion

¶ 37 The order is affirmed.

JUDGE TAUBMAN and JUDGE TOW concur.

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