         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
