Bolton v. Indus. Claim Appeals Office of Colo.

Decision Date21 March 2019
Docket NumberCourt of Appeals No. 18CA0888
Citation487 P.3d 999
Parties 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.
CourtColorado Court of Appeals

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 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 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 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 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, 373 P.3d 609 (quoting Support, Inc. v. Indus. Claim Appeals Office , 968 P.2d 174, 175 (Colo. App. 1998) ), aff'd , 2016 CO 26, 370 P.3d 151.

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 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 ...

To continue reading

Request your trial
2 cases
  • Macaulay v. Villegas
    • United States
    • Colorado Court of Appeals
    • April 7, 2022
    ...v. Indus. Claim Appeals Off. , 905 P.2d 1, 2 (Colo. App. 1994) ; see also Bolton v. Indus. Claim Appeals Off. , 2019 COA 47, ¶ 23, 487 P.3d 999, 1004-05. In the same vein, the supreme court explained that an award under the Act designates "only a decision on the merits." Indus. Comm'n v. Ko......
  • City &Cnty. of Denver v. Indus. Claim Appeals Office of Colo.
    • United States
    • Colorado Court of Appeals
    • December 2, 2021
    ...hearing, which addresses benefits and which grants or denies a benefit." Bolton v. Indus. Claim Appeals Off. , 2019 COA 47, ¶ 23, 487 P.3d 999 (quoting Burke v. Indus. Claim Appeals Off. , 905 P.2d 1, 2 (Colo. App. 1994) ); see also Safeway, Inc. v. Indus. Claim Appeals Off. , 968 P.2d 162,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT