Opinion
W.C. No. 4-495-089.
May 17, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which awarded permanent partial disability benefits (PPD) for mental impairment, permanent total disability (PTD) benefits and medical benefits in the form of essential services. We affirm the awards of medical and PTD benefits, and set aside the award of PPD benefits.
The respondents admitted liability for injuries suffered by the claimant on November 29, 2000 when he was struck in the head by the bucket of a front-end loader. A Division-sponsored independent medical examination (DIME) physician found that as a result of the injury, the claimant sustained 8 percent permanent medical impairment and 40 percent mental impairment. The respondents applied for a hearing to overcome the DIME's 40 percent mental impairment rating. In response the claimant endorsed the issues of PTD benefits and requested reimbursement for "essential services" provided by his family.
The ALJ found the case turned on:
"whether Claimant and his caregivers are found credible or whether Respondents' witnesses are found credible. If Claimant and his caregivers are believed, then Claimant suffered a neurological brain injury on November 29, 2000, and received inadequate care and attention, initially. Claimant's position is that, partially, because of the inadequate care, Claimant's condition worsened,"
Conversely, the ALJ found that:
"[I]f Respondents' witnesses are believed, Claimant has been faking his illness from the start. . . . . Respondents maintain that Claimant is malingering and his family has joined him in an effort to defraud Respondents. It is inferred from argument made at hearing that Respondents also take the position that Claimant's medical experts are either knowingly or unwittingly taking part in Claimant's scheme."
In the order on review, the ALJ resolved the conflict in favor of the claimant's witnesses. In particular, the ALJ credited expert medical testimony that early treatment, which was critical for claimant's recovery was not provided by the respondents. Crediting the opinions of vocational expert, Lee White (White), the ALJ also determined that as a result inadequate treatment for the industrial injury the claimant's condition deteriorated to the point that he is no longer capable of obtaining or maintaining employment. Therefore, the ALJ awarded PTD benefits.
The ALJ also found the respondents failed to overcome the DIME physician's mental impairment rating. Therefore, the ALJ ordered the respondents to pay PPD benefits based on 40 percent mental impairment.
Further, the ALJ determined the family of the claimant's brother, and the claimant's son provided the claimant with attendant type services which were reasonable and necessary to relieve the effects of the industrial injury. Consequently, the ALJ ordered the respondents to pay the claimant's family at a rate of $12 per hour, for providing essential services 4 hours per day retroactive to the date of injury.
I.
On review the respondents contend the ALJ erroneously excluded medical records from the claimant's prior workers' compensation claims. We reject this contention.
The respondents originally submitted claimant's previous medical records as Respondents' Hearing Exhibit F. However, the records were subsequently remarked as Exhibit "M." (Tr. March 5, 2004, p. 492). The respondents concede, the records were later marked and offered as exhibit "Q." The record further indicates the ALJ admitted exhibit "Q". (Tr. June 4, 2004, p. 1023; June 11, 2004 p. 1517; July 19, 2004 pp. 183, 186). Therefore, the respondents' contention is not supported by the record.
The respondents also contend the ALJ erroneously excluded the records of community service work the claimant performed after his conviction for driving while intoxicated. However, the respondent's witness Linda Kacvinski relied upon the records to refresh her memory and was allowed to provide testimony concerning the essential facts contained in the records. ( See Tr. January 26, 2004, p. 188). Under the circumstances, the respondents assertion does not establish grounds for appellate relief. Section 8-43-301(10), C.R.S. 2004; Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
II.
Next, the respondents contend the ALJ erroneously relied on the medical opinions of Dr. Pock and Dr. Esparza. The respondents contend the opinions of these medical experts are contrary to the undisputed facts and rebutted by the overwhelming weight of the evidence. We disagree.
Under the applicable law, a claimant is permanently and totally disabled if he is "unable to earn any wages in the same or other employment." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). The determination of whether the claimant is capable of earning wages in the same or other employment is a factual determination to be made by the ALJ based upon consideration of a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Christie v. Coors Transportation Co., supra. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
Contrary to the respondents' contentions, very few facts were "undisputed." Indeed evidence was presented over the course of eleven days during which both sides presented starkly contrasting lay and expert testimony concerning the nature, severity and residual affects of the industrial injury.
The ALJ's findings that the claimant suffered a traumatic brain injury and that the permanent effects of the injury render the claimant unemployable are supported by substantial evidence in the testimony of the claimant, Dr. Esparza, Dr. Pock and vocational expert Greg Lee White. ( See Tr. March 12, 2004, p. 767, 787-789, 796, 801; June 11, 2004 p. 1426-1495; June 14, 2004, p. 1667-1701; 1827-1835; July 19, 2004, p. 57). Furthermore, the testimony of Dr. Pock and the DIME physician amply support the ALJ's finding that the injury caused neurological damage. (Tr. June 11, 2004, p. 1494; July 19, 2004 p. 55; Claimant's hearing exhibit 18, depo. Dr. Pham p. 42).
We have no authority to reweigh the evidence on review and decline the respondents' invitation to do so. Christie v. Coors Transportation Co., supra. Further, we may not interfere with the ALJ's credibility determinations unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
The ALJ had occasion to observe the claimant's demeanor over several days of hearings and found the claimant's presentation to be sincere. People v. Sandoval, 709 P.2d 90 (Colo.App. 1985) (Court free to evaluate the claimant's courtroom demeanor as an element of credibility). Within his sole prerogative, the ALJ was also persuaded that the findings of the claimant's medical and vocational experts was consistent with the claimant's presentation and the testimony of the claimant's family which the ALJ also found credible. (Finding of Fact 59). Therefore, we cannot say the record demonstrates extreme circumstances that would allow us to conclude the ALJ erred as a matter of law in resolving the evidentiary conflicts in favor of the claimant's lay and expert witnesses.
The respondents' remaining challenges to the ALJ's factual determinations have been considered and are not persuasive. In particular, the ALJ's finding that the respondent-employer discharged the claimant for unauthorized use of a company cell phone is a plausible inference from the testimony of the employer's president, John Gearhart. ( See Tr. November 6, 2003, p. 39-40). However, the ALJ also recognized Gearhart's testimony that the claimant was fired for poor job performance.
Further, although the claimant testified that he went with his brother to talk to Daniel Guzman (Guzman) at Pirate Trucking, the ALJ was apparently not persuaded the claimant's memory was accurate in view of evidence that Guzman recognized the claimant's brother but not the claimant at the hearing. (Tr. January 26, 2004, p. 114); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness' testimony). In addition, Guzman testified that the claimant's brother did most of the talking during the meeting. (Tr. July 19, 2004, pp. 65-66). Under these circumstances, the ALJ's finding that the "claimant's brother and another man" asked Guzman to testify that the claimant never worked for Pirate Trucking is a plausible interpretation of the evidence. (Finding of Fact 17).
Insofar as the ALJ may have misstated the particular date in January 2001 when the claimant applied for work at Pirate Trucking (Finding of Fact 15), and the exact date in August 2001 when the claimant began treating with Dr. Esparza (Finding of Fact 42) and the September 2001 date when the claimant began treating with Dr. Pock (Finding of Fact 45), we fail to perceive how the errors were significantly prejudicial to the respondents. The ALJ explicitly considered but was not persuaded by the respondents' contentions that the timing of the claimant's various post-injury employment, treatment, arrest, and community service demonstrated the claimant fabricated the effects of the injury.
As argued by the respondents, the DIME physician admitted that his opinion the claimant sustained 40 percent mental impairment was changed by the new information he acquired during the hearings. However, the DIME physician did not specify how his rating had changed, nor did he indicate to what "degree it changed. (Claimant Exhibit 18, depo. Dr. Pham pp. 32-33). Accordingly, the ALJ could, and did find the DIME physician assigned a 40 percent rating for permanent mental impairment.
III.
The respondents contest the ALJ's award of medical benefits for "essential services" on grounds it is not supported by the record and is contrary to law. In particular, the respondents argue the issue of medical benefits after maximum medical improvement (MMI) was closed by virtue of the claimant's failure to contest the respondents' Final Admission of Liability (FAL).
The claimant contends the respondents' closure argument was waived. We disagree the issue was waived but perceive no grounds to disturb the ALJ's award.
Subject matter jurisdiction concerns the court's authority to deal with the class of cases in which it renders judgment. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). An ALJ's authority is strictly statutory, and the ALJ lacks subject matter jurisdiction when the claim is not timely filed pursuant to statutory deadlines. In re Estate of Ongaro, 998 P.2d 1097, 1103 (Colo. 2000); Compton v. Industrial Claim Appeals Office, 13 P.3d 844 (Colo.App. 2000).
Section 8-43-203(2)(d), C.R.S. 2004, provides that all issues admitted in a FAL are automatically closed unless, within 30 days of the FAL, the claimant files a written objection and requests a hearing on all disputed issues. Once closed the ALJ is precluded from granting additional benefits except where the issues closed are reopened pursuant to § 8-43-303 C.R.S. 2004.
The burden is on the party seeking to prove an issue is closed, and thus, it was the respondents burden to provide a record which establishes the issue of medical benefits was closed. See Elliott v. El Paso County, 860 P.2d 1363 (Colo. 1993); Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003).
Although the supporting documents are not contained in the file, it is undisputed the respondents filed a FAL in 2002. The claimant objected and requested a DIME. The respondents then filed an amended FAL for the payment of PPD benefits consistent with the DIME physician's medical impairment rating.
The respondents argue that contrary to an order that afforded the claimant 30 days from the date of the amended FAL to file a written objection, the did not file a written objection to the amended FAL. Under these circumstances, the respondents argue the issue of medical benefits was closed.
The record submitted on review does not contain any order directing the claimant to file a written objection the amended FAL. Further, it is apparently undisputed the respondents filed an application for hearing to overcome the DIME physician's mental impairment rating at the same time they filed the amended FAL. In an order dated February 27, 2003 an ALJ denied the respondents' request to file both an amended FAL and an application for hearing to contest the DIME report. Indeed, the matter was eventually heard on the respondents' application for hearing. Therefore, the record is legally insufficient to establish the issue of medical benefits was closed by the claimant's failure to file a written objection to the amended FAL.
Concerning the merits of the ALJ's award, § 8-42-101(1)(a), C.R.S. 2004 requires the employer to provide such "medical" and "nursing" treatment as may:
"reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury."
To be a compensable medical benefit, the service must be medical in nature or incidental to obtaining such medical or nursing treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). A service is medical in nature if it is reasonably needed to cure and relieve the effects of the injury and related to the claimant's physical needs. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997); Kuziel v. Pet Fair, Inc., supra.
Services which have been found to be "medical in nature" include home health care services in the nature of "attendant care" if reasonably needed to cure or relieve the effects of the industrial injury. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). Such services may encompass assisting the claimant with activities of daily living, including matters of personal hygiene. Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Further, it is well established that a claimant's family may be compensated for these services. See Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992).
The determination of whether the attendant care requested by the claimant is "medical in nature" is one of fact for determination by the ALJ, which must be upheld if supported by substantial evidence in the record. Bellone v. Industrial Claim Appeals Office, supra. In assessing the evidence, the ALJ may consider whether the services were medically prescribed, and whether they are directly associated with the claimant's physical needs. Bellone v. Industrial Claim Appeals Office, supra. However, the term "medical in nature" is not limited to services prescribed by the treating physician. Neither is there any rule or statute which requires the claimant to present evidence of a medical prescription from the attending physician before attendant care may be found to be medical in nature.
The respondents arguments notwithstanding, there is an abundance of evidence in the testimony of nurse case manager, Kathy Huffman, the claimant and the claimant's nephew, the claimant's sister-in-law, the claimant's son, Dr. Esparza and Dr. Pock that the claimant required attendant type services approximately 4 hours per day to prepare his meals, transport him to appointments, wash his clothing, manage his money, assist with issues of personal hygiene, remind him take his medication, and engage him in activities. (Tr. January 26, 2004 pp. 258, 262, 265; January 30, 3004, pp. 331-334, 416-419, 461-463; March 5, 2004, pp. 504-505; March 12, 2004, pp. 797, 901, 942; June 4, 2004, p. 1037; June 14, 2004, p. 1835; July 19, 2004, pp 51-52; 112-116).
Moreover, regardless of evidence the claimant was working full-time at Pirate Trucking between February 18, 2001 and March 10, 2001, there is substantial evidence the claimant's family had to assist him with personal hygiene, cooking and transportation during this period. Consequently, evidence of the claimant's employment for 88 hours at Pirate Trucking is not necessarily inconsistent with the award of essential services for this period. (Finding of Fact 15, 16). The ALJ also found with record support that the respondents did not prove the community service activities performed by the claimant totally refuted his need for attendant type services from this family. (Finding of Fact 20).
However, the ALJ did not impose liability for essential services when the claimant traveled to Texas and Mexico and was not cared for by his family. (Conclusion of Law 9). Consequently, we need not consider the respondents' arguments concerning this time period.
In any case, the respondents contend the order requiring them to reimburse the claimant's son for essential services to the claimant violates federal law which prohibits the hiring of illegal aliens. We question whether this argument was effectively preserved for review. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997) (argument must be raised before ALJ to be considered on appeal). In any case, the ALJ's determination that the respondents are liable for essential services provided by the claimant's son does not require the respondents to "hire" the claimant's son, anymore than an order holding the respondents liable for medical treatment provided by a physician of the claimant's selection pursuant to an order for a change of physician equates to a finding that the respondents "hired" the new physician. Moreover, the ALJ did not require the respondents to hire the claimant's son to provide the essential services awarded for the future.
IV.
Finally, the respondents contend the award of any PPD benefits for mental impairment is contrary to law. ( See Tr. November 19, 2003, p. 23). We agree and therefore, set aside the award of PPD benefits.
Although the standards for and methods of proving entitlement to PPD and PTD benefits differ, both types of benefits are payable for permanent loss of earning capacity. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996). Consequently, the court has held that a claimant is not entitled to benefits for PPD and PTD for the same periods of time. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996).
Recently we have also held that unless a party argues the claimant became permanently and totally disabled as a result of a worsening after MMI, a finding that the claimant is unable to earn wages requires an award of PTD benefits commencing at MMI. Scholfield v. Brian West D.D.S., W.C. No. 4-320-104 (March 7, 2005); Wiley v. Pine Extended Care Center, W.C. No. 4-496-922 (December 16, 2004). We adhere to our prior conclusions.
Here, the issue framed for the ALJ was whether the claimant was PTD at MMI. The ALJ made no finding that the claimant's PTD was caused by a worsening of condition after MMI. It follows that when the ALJ found the claimant was permanently and totally disabled, she implicitly found that the claimant proved entitlement to PTD benefits commencing on the date of MMI. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings and conclusions necessarily implied by an ALJ's order). Consequently, the ALJ erred in also ordering the respondents to pay PPD for mental impairment.
To the extent the respondents have other arguments they have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated October 25, 2004, is set aside insofar as it awarded permanent partial disability benefits for mental impairment. In all other respects the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Robert M. Socolofsky
Melquiades Campos, Denver, CO, ADP Total Source, Asphalt Professionals, Aurora, CO, Reliance Insurance Companies, c/o Francine Gingrich, Western Guaranty Fund Services, Denver, CO, Ken Daniels, Esq., Denver, CO, (For Claimant).
Heidi J. Hugdahl, Esq., Denver, CO, (For Respondents).