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
5
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.
18