Summary
In Jarrett, the ALJ found that the claimant's work capacities were "markedly reduced" since the reopening of his claim and we determined that the ALJ's finding supported an award of TTD benefits.
Summary of this case from In re Harris v. Diocese, C.S., W.C. NoOpinion
W.C. No. 4-273-179.
January 24. 2007.
FINAL ORDER
The respondents seeks review of an order of Administrative Law Judge Stuber (ALJ) dated August 17, 2006, that awarded the claimant temporary total disability (TTD) benefits and medical benefits. We affirm.
This matter proceeded to hearing for a determination of whether the claimant was entitled to TTD benefits after having his claim reopened and, also, to decide whether surgery to perform a spinal fusion was reasonably necessary. Several of the ALJ's findings of fact are summarized as follows. The claimant sustained a compensable injury to his back in 1995 and was unable to return to his regular job. He reached maximum medical improvement (MMI) with restrictions and his claim was closed by the filing of a final admission paying TTD benefits and permanent partial disability benefits. However, a physician determined that the claimant was worse and no longer at MMI. His claim was reopened on July 13, 2000. A physician subsequently imposed permanent, sedentary work restrictions. Several physicians examined the claimant, including Dr. Meinig, who recommended fusion surgery. Other physicians disagreed with this medical recommendation, but the ALJ found the proposed surgery to be reasonably necessary to cure or relieve the effects of the claimant's work injury. The ALJ also determined that the claimant suffered an increased disability due to his worsened condition, thereby entitling the claimant to ongoing TTD benefits from July 13, 2000, until terminated according to law.
I.
The respondents challenge both the award of TTD benefits and the proposed fusion surgery. Concerning the award of TTD benefits, the respondents argue that such benefits are improper in light of a physician's finding of MMI as of February 6, 2002. According to the ALJ's findings, Dr. Pero became an authorized treating physician when the claim was reopened on July 13, 2000. Findings of Fact, Conclusions of Law, and Order (Order) at 2 unpaginated), ¶ 6. The ALJ also refers to Dr. Pero's report dated February 6, 2002. Order at 3, ¶ 10. Dr. Pero's report indicates that the claimant reached MMI on February 6, 2002, as now asserted by the respondents. Exhibit 10. When respondents seek to terminate TTD benefits based upon a finding of MMI, they must prove that an authorized treating physician placed the claimant at MMI. Sections 8-42-105(3)(a), 8-42-107(8)(b)(I), C.R.S. 2006. However, we cannot find where the respondents fleshed out for hearing the ramification of the apparent finding of MMI after this matter was reopened. See W.C. Rule of Procedure 6-1(A)(1), 7 Code Colo. Reg. 1101-3 at 21 (providing for termination of temporary disability benefits based on MMI by filing admission of liability). Moreover, the ALJ's order merely states that the respondents are to pay TTD benefits "commencing July 13, 2000, and continuing thereafter until modified or terminated according to law." Order at 5, ¶ 1. As noted by the claimant's counsel at hearing, it is unclear why the question of the claimant's entitlement to TTD benefits after his claim was reopened was deferred until now. Tr. at 4. In any event, the ALJ made no findings related to the claimant reaching MMI after his claim was reopened. We do not read the ALJ's order as deciding the issue of whether TTD benefits should be terminated and if so when. The respondents have made factual assertions in their brief concerning the effect of a finding of MMI subsequent to the award of TTD. However, the parties did not present the issue to the ALJ of whether any award of TTD benefits granted was in turn subject to termination. The parties only discussed commencement of the date of TTD. Tr. 16 18. Therefore that issue is not before us. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) (review limited to record before ALJ); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (an issue may not be raised for the first time on appeal).
The respondents also assert that the claimant is prevented from receiving TTD benefits when he has not worked since his industrial accident pursuant to City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Section 8-42-105(3)(a), C.R.S. 2006, terminates temporary disability benefits when the claimant reaches MMI. A subsequent worsening of condition does not necessarily entitle the claimant to an award of temporary disability benefits even if the claimant is unable to return to the preinjury employment. City of Colorado Springs v. Industrial Claim Appeals Office, supra. To the contrary, the claimant must prove that the worsening resulted in additional physical restrictions which, in turn, caused impairment of the claimant's residual earning capacity beyond that which existed at MMI. If the claimant fails to satisfy these elements of proof, it is presumed that the impairment of the claimant's earning capacity remains permanent. Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14,1998); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
According to the respondents, the claimant cannot sustain any additional temporary loss of wages because he never returned to work. Respondents' Brief at 7. The ALJ found the claimant was unable to return to work at his regular job. Order at 2, ¶ 1. Nonetheless, we adhere to our previous conclusion that "the critical issue in cases controlled by City of Colorado Springs is not whether the worsened condition actually resulted in additional temporary wage loss but whether the worsened condition has had a greater impact on the claimant's temporary work capacity." Moss v. Denny's Restaurants, W.C. No. 4-440-517 (September 27,2006) at 4, citingKreimeyer v. Concrete Pumping, Inc., W.C. No. 4-303-116 (March 22, 2001). The ALJ found that the claimant's work capacities were "markedly reduced" since the reopening of his claim. Order at 3, ¶ 10. The ALJ's finding supports the award of TTD benefits.
However, the respondents also argue that the record does not support the ALJ's determination that the claimant suffered a diminished work capacity entitling him to TTD benefits. The question of whether the claimant has sustained his burden of proof is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2006; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard, we must view the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ is presumed to have considered the entire record and is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., Ill Colo. 329,467 P.2d 48 (1970). In addition, the ALJ is not held to crystalline standard in articulating his findings of fact, and is not required to address theories or evidence implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). It is well-settled that the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel andiron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
The claimant testified that after he was given restrictions at the time he was initially found to be at MMI in 1996, including a lifting a maximum of 40 pounds. He further testified that he could not lift that amount at the time of hearing and, also, that he had worsened and could not find any job he could do. Tr. at 10; Exhibit 12. In addition, the ALJ specifically noted that a functional capacity evaluation showing "equivocal validity" indicated "that the claimant could lift, carry, push, and pull about 8 pounds." The ALJ also credited Dr. Pero's report of February 6, 2002, which imposed sedentary work restrictions including "lifting a maximum of 10 pounds, alternating sitting and standing, and no prolonged bending or stooping." Order at 2-3, ¶¶ 9-10. These findings are supported by the evidence before the ALJ. Exhibits 2, 10. The ALJ's determination that the claimant's worsened condition caused a greater impact upon his temporary work capability than he had originally sustained due to his injury is supported by the record and we, therefore, decline to disturb that determination. See City of Colorado Springs, 954 P.2d at 640.
II.
The respondents also argue that there is ample support in the record to support a finding that the claimant does not need a fusion surgery. It is true that more than one physician opined that surgery on the claimant's back was contraindicated. Exhibit F at 25; Exhibit G at 32. However, the ALJ credited Dr. Meinig's recommendation that the claimant undergo surgery. Order at 3, ¶ 16 and at 4, ¶ 21. We cannot say that Dr. Meinig's recommended course of action is rebutted by such hard, certain evidence that it would be error as a matter of law to credit it. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Moreover, the existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The respondents claim the ALJ engaged in speculation when he found certain physicians did not have all materials relevant to the claimant's medical condition. See Order at 4, ¶ 21. However, the respondents' argument goes to the weight to be given the reports of the various physicians, and it is for the ALJ to determine the weight and credibility of expert medical opinion. Rockwell International v. Turnbull, 802 P. 2d 1182 (Colo.App. 1990). Moreover, we may not substitute our judgment for that of the ALJ when faced with two equally plausible inferences from the evidence, including medical evidence. City of LovelandPolice Department v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006).
Respondents also assert that the August 16,2005 MRI does not show neural foraminal encroachment as found by the ALJ. Order at 3, ¶ 18 and at 4, ¶ 20. However, the corresponding report ordered by Dr. Meinig confirms "a mild bilateral neural foraminal encroachment" at the L5-S1 level of the claimant's spine, as found by the ALJ. Exhibit 6. We find no error in the ALJ's determination that fusion surgery is reasonably necessary to cure or relieve the effects of the claimant's work injury. The respondents' remaining arguments are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated August 17, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Thomas Schrant
Adarand Construction, P.O. Box 5218, Colorado Springs, CO 80931
Zurich Insurance Company, Valerie Burke, P.O. Box 20048, Kansas City, MO 64195
Alexander Ricci LLC, William A. Alexander, Esq., 3055 Austin Bluffs Parkway, Colorado Springs, CO 80918 (For Claimant)
Clifton, Mueller Bovarnick, P.C., Royce W. Mueller, Esq., 789 Sherman Street, Suite 500, Denver, CO 80203 (For Respondents)