Opinion
W.C. No. 4-648-488.
March 20, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) mailed February 21, 2007, that determined the claimant reached maximum medical improvement (MMI), denied further medical and temporary total disability benefits and denied the claimant's request to reopen. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted left shoulder injury on April 14, 2005. The claimant's condition improved during her course of treatment. On May 11, 2005, the claimant was involved in a motor vehicle accident, which aggravated her left shoulder condition. On November 29, 2005, the claimant's treating physician placed the claimant at MMI with a six percent upper extremity impairment rating and opined that any future need for left shoulder surgery would be related to the motor vehicle accident and not to her industrial injury. The respondent filed a final admission of liability and the claimant subsequently sought a Division Independent Medical Examination (DIME). The DIME physician agreed with the treating physician that the claimant reached MMI on November 29, 2005. However, the DIME physician opined that the claimant's condition had worsened since she was placed at MMI and that she would require left shoulder surgery in order to return to MMI. The DIME physician assigned the claimant a 14 percent left upper extremity impairment rating and apportioned 50 percent of the impairment to the industrial injury and 50 percent to the motor vehicle accident.
The ALJ noted that while the DIME physician opined that the worsening of the claimant's condition was at least partly attributable to her industrial injury this opinion was not entitled to presumptive effect because it pertained to the reopening of a claim. The ALJ reasoned that the respondent was not required to overcome the opinion of the DIME physician by clear and convincing evidence but rather the claimant had to establish by a preponderance of the evidence that she suffered a change in condition in order to reopen her claim.
The ALJ found that the clamant had failed to establish that her worsened condition after MMI was causally connected to her industrial injury. The ALJ found that although the claimant's industrial injury may have caused her to have a weakened left shoulder, it did not proximately cause her worsened condition or need for surgery. The ALJ further found that the motor vehicle accident constituted an efficient intervening cause. Based upon these factual findings, the ALJ concluded that the industrial injury did not play a causative role in the claimant's worsened condition or need for left shoulder surgery. The ALJ concluded that the claimant had reached MMI on November 29, 2005, and denied the claimant's request to reopen her claim. The ALJ denied the claimant's request for medical benefits and TTD because she had failed to demonstrate that her industrial injury caused her to suffer a worsened condition.
I.
On appeal, the claimant first contends that the ALJ erred in his determination that the motor vehicle injury constituted an efficient intervening cause. The claimant argues that the DIME physician opined that, but for the weakened condition, the motor vehicle accident would not have led to a need for surgery. The claimant citing Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); and Vanadium Corporation of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957) argues that the ALJ failed to consider that the industrial injury left the claimant in a "weakened condition" and that the weakening played a causative role in the subsequent injury. The claimant further argues that the ALJ erred in finding that the claimant's condition at MMI was unrelated to her industrial injury. We are unpersuaded that the ALJ committed reversible error in this respect.
In Standard Metals Corp. v. Ball, supra claimant's right leg was fractured in an admitted accident in the course of his employment. Thereafter, claimant underwent corrective surgery, including a bond graft. Some 14 months later, the claimant slipped and fell on an icy sidewalk, refracturing his right leg. The medical testimony in that case showed that the second fracture probably would not have occurred except for the weakened condition of the bone and the weakened musculature of the leg caused by the initial fracture and resulting surgery. The fact finder found that there was a causal connection between the second fracture and the original compensable injury, and the Colorado Supreme Court upheld the award of compensation.
Here, in contrast to the circumstances in Standard Metals Corp., the ALJ found with record support that the industrial injury did not play a causative role in the claimant's worsened condition or need for left shoulder surgery. The ALJ further found that the claimant's May 11, 2005, motor vehicle accident constituted an efficient intervening cause and that the claimant's industrial injury did not play a direct causative role either in her worsened condition or her need for left shoulder surgery. The ALJ noted that Dr. Reichhardt persuasively opined that the claimant's condition had been improving, but that her motor vehicle accident caused her to have more limited range of motion, a more significant pain response to provocative maneuvers, and left shoulder weakness that was not present prior to her motor vehicle accident. Tr. at 24-26. Dr. Reichhardt stated that the claimant's need for surgery was necessitated by her motor vehicle accident as opposed to her work-related injury. Tr. at 35. Dr. Reichhardt opined that when he placed the claimant at MMI on November 29, 2005 she had completed treatment for her work-related injury and that the surgery would be based on her motor vehicle accident rather than on her work-related injury. Tr. at 41-42.
In addition, Dr. Shaw credibly opined that the claimant's contemplated shoulder surgery was probably necessitated by the motor vehicle accident. Exhibit A at 25. Dr. Shaw opined that the worsening of her condition was not related to the original impingement syndrome diagnosed following her work injury, but rather, the aggravation of the impingement that arose from the motor vehicle accident. Shaw Depo. at 18-19.
As noted by the claimant, Dr. Parks's testimony could be understood as expressing the opinion that but for the weakened condition, the motor vehicle accident would not have led to a need for surgery. Parks Depo. at 24 (October 10, 2006). However, as the respondent points out, Dr. Parks' testimony could also be read as expressing the opinion that it was speculative as to whether the claimant would have needed surgery but for the intervening motor vehicle accident. Parks Depo. at 17, 22 (August 14, 2006). Of course, where the evidence is susceptible of different inferences, it is the ALJ's role to resolve the conflicts. In any event, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
Here, we perceive no error in the ALJ's reliance upon Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188 (Colo.App. 2002), which in turn relied on Post Printing Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327(1934). In Post Printing Publishing Co. the claimant's industrial injury had resulted in a weakened condition in his right knee. He then subsequently injured his ankle when he slipped on a snowy sidewalk. In reversing the award of the Industrial Commission, the court there held that the second injury was due to an efficient intervening cause and did not arise out of or in the course of the claimant's employment. The court noted that merely because the later accident might or would not have happened if the employee had retained all his former physical powers does not make the case compensable. As noted, the court in Owens relied upon Post Printing Publishing Co. in observing that while all results flowing proximately and naturally from an industrial injury are compensable, an independent cause may intervene and the later accident or injury is therefore not compensable. The court in Owens also noted that whether a particular condition is the result of an independent intervening cause is a question of fact for resolution by the ALJ.
Because the issue is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he 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).
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, as noted above substantial evidence supports the ALJ's resolution of the issue. We perceive no reversible error in the ALJ's determination that the claimant's motor vehicle accident constituted an efficient intervening cause of her left shoulder problems.
II.
The claimant next contends that because the claimant was attempting to reopen her claim the ALJ erred by not requiring the respondent to overcome the DIME physician's opinion. In his order, the ALJ noted that the claimant was obligated to establish by a preponderance of the evidence that she suffered a change in condition in order to reopen the claim. The ALJ noted that the DIME physician opined that the worsening of the claimant's condition was at least partly attributable to her industrial injury. However, the ALJ determined that the DIME physician's opinion was not entitled to deference because it pertained to the reopening of the claim and was not an opinion that is expressly entitled to presumptive effect under the Act. Here the ALJ, citing Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, (Colo.App. 2002) and In re Saldana, W.C. No. 4-491-537(August 3, 2006), noted that when a claimant seeks to reopen a claim based on a change in condition the respondents are not required to overcome a DIME physician's opinion by clear and convincing evidence. Consequently, the ALJ concluded that the respondent was not required to overcome the DIME physician's opinion by clear and convincing evidence. Instead, the ALJ found that it was the claimant's burden to establish by a preponderance of the evidence that she suffered a change in condition in order to reopen her claim.
We agree that the ALJ erred in denying the claimant's "request to reopen her workers' compensation claim." Findings of Fact, Conclusions of Law, and Order at 8. In our view neither the claim nor any issue was closed and thus "reopening" was irrelevant to the disposition of the issues presented for hearing. Under § 8-43-203(2)(b) C.R.S, 2007 a claimant may prevent the automatic closure of issues admitted to in a final admission by contesting the admission in writing and requesting a DIME or applying for a hearing. Here the claimant did request a DIME and the respondent after receiving the report from the DIME physician, filed an application for hearing on the issues of overcoming the DIME physician's opinion by clear and convincing evidence. Therefore, the claimant apparently took the necessary steps under the statute to prevent the claim from closing. However, because the DIME physician agreed with the treating physician's opinion on the date of MMI it is not necessary to remand for additional findings because of the ALJ's apparent confusion on the issue of whether the claimant sought "reopening" of the claim. Moreover, to the extent the claimant characterized one applicable issue as a "worsening" of her condition, Tr. at 18, and argued that she was "no longer at MMI," this error was invited and does not provide grounds for reversal on appeal. See Claimant's Position Statement at 6. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. 1993).
Here, Dr. Reichhardt, an authorized treating physician who was aware of the claimant's May 2005 motor vehicle accident, placed the claimant at MMI for the industrial injury on November 29, 2005. Further, the DIME physician agreed with the MMI date of November 29, 2005. The DIME physician's report may have created some confusion by including the opinion that the claimant's condition had deteriorated after reaching MMI and the opinion that the claimant was in need of surgery in order to return to MMI. However, if there are any ambiguities in a DIME physician's report regarding whether a claimant is at MMI, resolution of such ambiguities presents a question of fact for the ALJ to resolve. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); MGM Supply Co. v. Industrial Claim Appeals Office 62 P.3d 1001(Colo.App. 2002). Here the ALJ resolved the ambiguity by specifically finding that the claimant reached MMI for her industrial injury on November 29, 2005. Finding of Facts, Conclusions of Law, and Order at 5, § 16.
Moreover, we reject the claimant's argument that the respondent was responsible for overcoming the DIME's opinion regarding "causation" by clear and convincing evidence. As noted, the ALJ interpreted the DIME report as stating that the claimant reached MMI on November 29, 2005, and that interpretation was a reasonable one and is supported by the language of the report. Once the ALJ determined that the DIME physician agreed with the authorized treating physician's date of MMI, any party contesting that opinion was obligated to overcome the MMI date by clear and convincing evidence. However, in our view, the ALJ correctly determined that the DIME physician's opinion concerning the claimant's medical course after the date of MMI was not entitled to special weight under the statute. It follows that we reject the claimant's argument that the respondent was required to overcome that portion of the DIME opinion by clear and convincing evidence.
Under § 8-42-105(3)(a), C.R.S. 2007, temporary disability benefits terminate at maximum medical improvement (MMI). In addition, MMI is defined as the date when all medically determinable impairment caused by the injury is stable and no further treatment is reasonably expected to improve the condition. Section 8-40-201(11.5), C.R.S. 2007; McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Because the ALJ found with record support that the claimant had reached MMI and had not worsened because of the compensable injury, we perceive no error in the denial of the claims for medical benefits and TTD benefits after MMI.
IT IS THEREFORE ORDERED that the ALJ's order mailed February 21, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
KAREN KURTZ, EATON, CO, (Claimant).
THE MORRELL LAW OFFICE, LLC, Attn: BRITTON MORRELL, GREELEY, CO, (For Claimant).
BLACKMAN LEVINE, LLC, Attn: LAWRENCE BLACKMAN, DENVER, CO, (For Respondents).
SEDGWICK CLAIMS MANAGEMENT SERVICES, Attn: LORI HASTY, DENVER, CO, (Other Party).
SEDGWICK CLAIMS MANAGEMENT SERVICES, Attn: SHARMIE JENSEN, SALT LAKE CITY, UT, (Other Party 2).