Opinion
W.C. No. 4-397-020
May 9, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied her Petition to Reopen and request for further medical benefits. We set aside the order and remand the matter for entry of a new order.
In February 1998, the claimant suffered an admitted injury which resulted in bilateral wrist problems. On April 29, 1998, Dr. Amick placed the claimant at maximum medical improvement (MMI) with no permanent impairment and no medical restrictions. The claim was closed following the respondents' filing of an uncontested Final Admission of Liability dated October 15, 1998.
On January 9, 2002, the claimant filed a Petition to Reopen which alleged a change in condition. The claimant requested additional medical benefits in the nature of a cervical MRI to diagnosis the cause of her neck pain.
The ALJ found the claimant testified that after the industrial injury the employer gave her a "lighter job" as a Vault Teller. (Finding of Fact 9). In April 2002, the claimant left the employer and began work as a housekeeper and dietary aide. The ALJ also found the claimant testified that her bilateral upper extremity problems "have continued to worsen since she left her employment at Loomis." (Finding of Fact 16).
Relying on the medical opinions of Dr. Hughes and Dr. Beatty, the ALJ found the claimant failed to prove a worsening of condition related to the industrial injury. Therefore, the ALJ denied the Petition to Reopen and the claim for further medical benefits.
On review the claimant contends, inter alia, there is not substantial evidence to support the ALJ's finding that she testified "she was given a lighter job as a Vault Teller" when she returned to work for the employer in April 1998. To the contrary, the claimant contends she testified the job of Vault Teller was harder than her pre-injury job and that the extra lifting, pushing and handwriting required as a Vault Teller caused the pain in her hands to worsen. We agree the ALJ's finding is not supported by the record.
The claimant testified that from February through April 1998, she received treatment for the industrial injury. She stated that when she was released to return to work in April 1998, she was given the job of Vault Teller. (Tr. pp. 14, 15). The claimant testified she continued this assignment until September 2001 when she cut back to part-time work to avoid the "heavy work" required as a Vault Teller. (Tr. 18). Then, in March 2002, the claimant left the employment for reasons she relates to the industrial injury. (Tr. p. 20).
In response to the question of whether she understood the job of Vault Teller would be a "lighter job," the claimant answered, "Yes," because she thought it only required a lot of handwriting. (Tr. p. 15). However, she added that as time when on she determined the job actually required heavy lifting, pushing and pulling of bags and boxes of coins that weighed up to 75 pounds. She also stated that she had to throw some of the bags overhead onto a shelf. (Tr. pp. 16, 23). Further, she stated the "heavy" lifting on this assignment caused her wrist, arm, shoulder and neck condition to worsen. (Tr. p. 16). Accordingly, the transcript does not support the contested finding.
Even though the ALJ was not required to credit the claimant's testimony, Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970), we cannot presume the ALJ's finding that the claimant "testified" the Vault Teller job was "a lighter job" is actually a finding that the Vault Teller job was lighter than the claimant's pre-injury job. Cf. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of no evidence may not be converted to a finding of no credible evidence). Thus, the contested finding must be set aside.
Furthermore, we cannot say the ALJ's error is harmless. The claimant alleged a worsening of her industrial injury, caused at least in part by the heavy duties required of her employment as a Vault Teller. We are unable to ascertain how the ALJ would have assessed the sufficiency and probative value of the claimant's testimony that her condition worsened after MMI in the absence of the ALJ's erroneous determination that the claimant conceded her post-injury job was not as strenuous as her pre-injury assignment. Moreover, the opinions of Dr. Beatty, who the ALJ found persuasive, are based in part on the belief the claimant performed lighter work. (Finding of Fact, 19). Consequently, we must remand the case for the ALJ to reconsider the evidence and enter a new order on Petition to Reopen and request for medical benefits.
In view of our remand, it is premature to consider the claimant's remaining arguments in support of her contention that the ALJ erroneously denied her request for additional medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated November 20, 2002, is set aside and the matter is remanded for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed May 9, 2003 to the following parties:
Eileen Coronado, 5052 W. 53rd Ave., #101, Arvada, CO 80002
Jim Wilson, Loomis Armored, Inc., 600 S. Cherry St., #314, Denver, CO 80246
David Herrera, Pacific Employers Insurance Co. (CIGNA), P.O. Box 2941, Greenwood Village, CO 80150
Evelyn Radmacher, ACE/ESIS, Inc., P. O. Box 911, Portland, OR 97207
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado