Opinion
W.C. No. 4-297-675
May 3, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Hopf (ALJ Hopf) which reopened the claim based on a worsened condition, and an order of Administrative Law Judge Felter (ALJ Felter) which awarded temporary disability benefits and medical benefits as a result of the reopening. The respondents argue ALJ Hopf's order was erroneous because the evidence compels the conclusion the claimant's worsened condition was caused by an "intervening event." The respondents contend ALJ Felter's order is erroneous because the evidence is insufficient to establish the claimant was disabled by the worsened condition, and because the evidence does not support a finding the claimant's need for medical treatment was caused by the worsened condition. We affirm.
The claimant sustained a compensable back injury in April 1996, and underwent disc surgery in February 1997. The claimant was placed at maximum medical improvement (MMI) in July 1997, with a 14 percent whole person medical impairment rating. The respondents filed a final admission of liability based on this impairment rating. On October 18, 1997, the claimant was at home and leaned over a sink to wash. He experienced a sudden increase in symptoms including back and leg pain. The claimant then filed a petition to reopen based on a worsened condition.
ALJ Hopf found the claimant's industrial back injury and consequent surgery weakened the claimant's back, and that the increase in symptoms on October 18 was the result of a "natural progression of the industrial injury." ALJ Hopf concluded that this natural progression constituted a worsening of condition and reopened the claim. In so doing, ALJ Hopf principally relied on the opinions of Dr. Bralliar, a physician who examined the claimant in March 1998.
Subsequently, ALJ Felter considered the claimant's entitlement to benefits because of the worsened condition. Based on medical reports and the results of a functional capacities evaluation, ALJ Felter found that the claimant's lifting restrictions were increased as a result of the worsening. Consequently, ALJ Felter found the claimant was temporarily and totally disabled commencing January 12, 1998. Further, ALJ Felter credited the opinions of Dr. Nadler and Dr. Hughes to the extent they support the conclusion the claimant's need for additional treatment was caused by the injury.
I.
On review, the respondents contest ALJ Hopf's conclusion that the claimant's worsened condition was a natural and proximate result of the industrial injury rather than an "intervening injury." The respondents assert that Dr. Bralliar's opinions are incredible as a matter of law, and that the ALJ should have relied on medical opinions favorable to their theory of the case. The respondents also challenge certain findings of fact. We find no error.
Where the claimant seeks to reopen based on a worsened condition, the claimant must demonstrate a change in condition which can be "causally connected to the original compensable injury." Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). It is well established that if an industrial injury leaves the body in a weakened condition, and that weakened condition is a proximate cause of further injury to the claimant, the additional injury is a compensable consequence of the industrial injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, if the claimant sustains an additional injury as a result of an efficient intervening cause, the mere fact that the additional injury would not have occurred had the employee retained all of his former physical powers does not render the additional injury compensable. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934).
We have previously held that the question of whether a particular condition represents a natural progression of the industrial injury or is the result of an efficient intervening cause is one of fact for determination by the ALJ. Lutgen v. Teller County School District No. 2, W.C. No. 3-846-454 (June 12, 1996), aff'd., Teller County School District No. 2 v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1194, December 27, 1996) (not selected for publication). It is only were reasonable minds can draw but one inference that the issue of causation becomes one of law. Schrieber v. Brown Root Inc., 888 P.2d 274 (Colo.App. 1993).
Because the issue is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Where medical experts render conflicting opinions concerning the issue of causation, resolution of such conflicts is a matter for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, we may not find testimony is incredible as a matter of law unless it is rebutted by hard, certain evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Testimony is not incredible as a matter of law merely because it is biased, inconsistent, or conflicting. People v. Ramirez, ___ P.3d ___ (Colo.App. No. 99CA1973, February 15, 2001).
Here, Dr. Bralliar, Dr. Hughes, and Dr. Hakimian all agreed that the surgery left the claimant's back in a weakened condition which rendered it susceptible to further injury. Further, these physicians generally agreed that after the surgery the claimant was not restricted from leaning over a sink. (Tr. March 11, 1999, pp. 74, 77; Hughes depo. pp. 50-51; Hakimian depo. pp. 34, 47). Dr. Bralliar testified that leaning over the sink would not have caused a worsening absent the already weakened condition of the claimant's back. (Tr. March 11, 1999, p. 77).
Under these circumstances, the question of whether the claimant's worsened condition was a natural and proximate result of the industrial injury, or an intervening injury, was one of fact, not law. Moreover, substantial evidence supports the ALJ's resolution of the issue. We specifically hold that Dr. Bralliar's opinion testimony concerning the cause of the claimant's worsened condition was not incredible as a matter of law, but was significantly corroborated by portions of the testimony of other experts. Further, ALJ Hopf's finding that Dr. Martinez was mistaken concerning the claimant's symptoms prior to October 23, 1997, is fully supported by his deposition testimony. (Martinez depo. pp. 14-15). The fact that the respondents' counsel attempted to rehabilitate Dr. Martinez by pointing out the true state of the evidence went to the weight of the testimony, and did not render the ALJ's finding incorrect as a matter of law. Finally, it was proper for the ALJ to consider whether the claimant was exceeding his medical restrictions when he leaned over the sink because this question is relevant to whether or not there was an efficient intervening cause. Lutgen v. Teller County School District No. 2, supra. Insofar as the respondents make other arguments, we find them to be without merit.
II.
The respondents next contend that ALJ Felter erred in awarding temporary total disability benefits commencing January 12, 1998. The respondents argue the claimant failed to prove any additional disability as a result of the worsened condition. In support of this assertion the respondents argue the claimant was unable to perform his "regular employment" after he was placed at MMI, and the claimant has not worked since October 15, 1996. We perceive no error.
In City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the court held that when a claimant alleges a worsening of condition after reaching MMI, the claimant is not entitled to additional temporary disability benefits unless the claimant proves the worsening has caused additional restrictions resulting in additional temporary wage loss. Proof of additional disability is a question of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
Here, ALJ Felter found on substantial medical evidence that by January 1998 the claimant's lifting restrictions had significantly increased over those which existed at the time of MMI, and inferred these increased restrictions impaired the claimant's capacity to find and hold employment to a greater extent than existed on the date of MMI. (Finding of Fact 14). Thus, ALJ Felter found the claimant re-established a causal connection between his injury and the temporary wage loss commencing January 12. The record supports this determination regardless of the fact the claimant did not attempt to work within the permanent restrictions which existed prior to the worsening. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Once the claimant proved that he sustained additional disability as a result of the worsening, he was not required to search for employment to maintain his entitlement to temporary disability benefits. Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1995).
Insofar as the respondents challenge the sufficiency of the evidence to establish that the need for additional treatment was caused by the injury, we find no error. Although the opinions of Dr. Hughes and Dr. Nadler are subject to conflicting interpretations, the ALJ resolved the inconsistencies in favor of the claimant. Colorado Springs Motors Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may resolve inconsistencies in the testimony of a medical expert). Dr. Hughes stated that significant deterioration of the claimant's condition "appears to have occurred," and recommended a spinal evaluation and a psychiatric evaluation to rule out suicidal ideation. Dr. Nadler made similar recommendations and stated that, "I certainly feel at this point that the symptoms he is presently having are related to the accident he had while working at Sam's Club in April 1996." Thus, substantial evidence supports ALJ Felter's conclusion that the claimant's need for additional treatment is causally related to the industrial injury. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. The fact the evidence might have supported other conclusions is immaterial on review.
IT IS THEREFORE ORDERED that the order of ALJ Hopf dated September 23, 1999, and the order of ALJ Felter dated September 18, 2000, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 3, 2001 to the following parties:
George Goble, 2712 S. Truckee St., Aurora, CO 80013
Sam's Wholesale Club, Wal Mart Stores, 7817 Park Meadows Dr., Littleton, CO 80124
Insurance Company of the State of Pennsylvania, AIG, P. O. Box 32130, Phoenix, AZ 85064
Karen Goad, Claims Management, Inc., PO Box 1288, Bentonville, AR 72712
Dan N. Hover, Esq., 1805 S. Bellaire St., #205, Denver, CO 80222 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy