Opinion
W.C. No. 4-299-627
November 3, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ), dated June 18, 2003, which awarded permanent total disability benefits. We affirm.
The claimant sustained a compensable repetitive motion injury to her upper extremities. The treating physician, Dr. Price, assigned a medical impairment rating for permanent impairment to the upper extremities and imposed permanent work restrictions. A Division-sponsored independent medical examination (DIME) physician assigned a rating for bilateral impairment to the upper extremities and imposed work restrictions consistent with the restrictions imposed by the treating physician.
Dr. Dean restricted the claimant to sedentary work activities and prohibited the claimant from lifting more than 5 pounds, regular lifting above the shoulder level, and prolonged neck extension or flexion. Similarly, a functional capacity evaluation by Physical Therapist Patricia Riley (Riley) placed the claimant in the sedentary work category.
In a previous order dated June 28, 2002, the ALJ determined the claimant suffers headaches, neck pain, upper back pain, chest pain, pain in her shoulders, pain and numbness in her arms, pain and numbness in her hands, lack of grip strength in her hands, difficulty sleeping, irritability, concentration problems, and limited range of motion of the upper extremities and neck as a result of the industrial injuries. The ALJ also found that this symptomatology precludes the claimant from performing various activities of daily living which require fine motor skills such as cooking, using a keyboard, writing longhand, lifting, grocery shopping, and dressing. Further, the ALJ determined the claimant has been diagnosed with depression secondary to the industrial injury, for which the claimant takes anti-depressant medication and engages in psychological counseling. The ALJ found this medication and the time-released morphine prescribed to treat the industrial injury impair the claimant's ability to stay awake and concentrate.
The claimant's vocational rehabilitation expert, Ron Brennen (Brennen), opined that the claimant is unemployable as a result of her physical limitations, chronic pain, depression, and the side effects of the medication prescribed to treat the injury. The respondents' vocational expert, Margot Hammar (Hammar), disagreed and opined the claimant remains capable of earning wages in several occupations. Crediting Brennen's testimony, the ALJ found the claimant sustained her burden to prove she is permanently and totally disabled.
Following the respondents' appeal, we concluded the ALJ's findings of fact were insufficient to permit review of the respondents' contention that the ALJ erroneously relied on evidence concerning side effects of medication not prescribed by the authorized treating physicians. Therefore, we remanded the matter for the entry of specific findings concerning whether the unauthorized medications are reasonably necessary to relieve the effects of the industrial injuries, and thus whether the industrial injuries are a significant causative factor in the claimant's disability.
Pursuant to that remand, the ALJ issued the June 18, 2003 order, in which he modified Finding of Fact 15 to indicate that the claimant utilizes MS Contin, Neurontin, and an anti — depressant to alleviate her work-related symptomatology and these medications are reasonable and necessary to relieve the effect of the industrial injuries. The ALJ incorporated all other findings of fact and conclusions of law from the June 2002 order, and again awarded permanent total disability benefits. The respondents timely appealed.
I.
Relying on Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), the respondents first contend the ALJ erroneously considered any diagnosis beyond the diagnosis of the DIME physician. Because the DIME physician never diagnosed depression, the respondents argue the ALJ erroneously considered the effects of the anti-depressant medication in the absence of "clear and convincing" evidence to overcome the DIME physician's opinions. We disagree.
Under § 8-42-107(8)(c), C.R.S. 2002, the DIME physician is entitled to special weight on the issues of maximum medical improvement (MMI) and permanent partial disability. Because the rating of impairment necessarily requires a physician to determine all losses caused by the industrial injury, the court in Qual-Med, Inc., v. Industrial Claim Appeals Office, supra, concluded that the DIME physician's determination of whether an impairment is caused by the industrial injury is also governed by the clear and convincing evidence standard. However, the courts have repeatedly held that the heightened burden of proof required by § 8-42-107(8)(c) is confined to the issues of MMI and medical impairment benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001).
Permanent total disability is defined as the claimant's inability "to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2002. Neither § 8-40-201(16.5) nor § 8-42-111 C.R.S. 2002, requires permanent total disability to be proven by "clear and convincing evidence." Rather, the claimant is required to prove permanent total disability by a preponderance of the evidence. See Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 27, 1994); Ybarra v. Ray Shelton Construction Co., W.C. No. 4-116-741, (November 24, 1993). Consequently, a claimant may prove permanent total disability without overcoming the DIME physician's medical impairment rating or the DIME physician's opinion on the cause of the impairment.
In determining whether the claimant is capable of earning wages, the ALJ may consider a myriad of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Contrary to the respondents' contention, non-industrial medical conditions which impair the claimant's ability to earn wages are relevant "human factors" in determining whether the claimant is permanently totally disabled. Pinkard v. Jefferson County School, W.C. No. 4-174-632 (March 18, 1998); Short v. Property Management of Telluride, W.C. No. 3-100-726 (May 4, 1995). The only limitation is that the effects of the industrial injury must be a "significant causative factor" in the permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
Here, the issue for adjudication before the ALJ was permanent total disability. Consequently, the ALJ did not misapply the law by considering the effects of the anti-depressant medication without requiring the claimant to overcome the DIME physician's opinion concerning the nature and severity of permanent medical impairment from the industrial injury. It follows the ALJ was also not required to afford the DIME physician's opinion concerning the claimant's need for MS Contin, Neurontin and anti-depressant medication any special weight. See Cordova v. Industrial Claim Appeals Office, supra; Bond v. Penrose Home Care, W.C. No. 4-275-808(April 16, 2001), aff'd. Bond v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0831, November 23, 2001) (not selected for publication); Henderson v. Eastman Kodak, Inc., W.C. No. 4-256-823 (February 24, 2000), aff'd. Henderson v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1532, February 24, 2000) (not selected for publication) (DIME opinion on need for future medical benefits is not subject to the clear and convincing evidence standard).
The respondents also contend they had no advance notice the claimant would rely on evidence concerning the effects of the medication prescribed by unauthorized treating physicians because the claimant did not request payment for the MS Contin, Neurontin and anti-depressant medication at a 1999 hearing on her request for medical benefits after MMI.
We are not persuaded the respondents' due process rights were violated.
Under § 8-42-101(1)(a), C.R.S. 2002, the respondents are liable for authorized and emergency medical treatment which is reasonably needed to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The obligation to provide medical benefits terminates at MMI. However, a claimant is entitled to future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonably necessary to relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992).
Authorization is a separate and distinct question from whether treatment is reasonably necessary. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). Thus, evidence that the claimant did not request payment for the prescription medication prescribed by unauthorized treating physicians did not preclude the ALJ from finding such medication was reasonably necessary to relieve the effects of the industrial injuries.
Moreover, in a medical report dated March 21, 2002, Dr. Price opined that the unauthorized medications were appropriate treatment. This evidence put the respondents on notice the ALJ might consider the effects of these medications on the claimant's employability. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990) (due process contemplates advance notice of both the legal and factual issues to be litigated). Further this evidence supports the ALJ's finding that the medications prescribed by unauthorized physicians relieves the effects of the industrial injuries. ( See Finding of Fact 15). Therefore, the ALJ's finding must be upheld on review.
II.
Next, the respondents contend the ALJ abused his discretion in allowing Brennen to testify about the vocational effects of the claimant's prescription medication. The respondents contend such testimony can only be offered by an expert "medical" witness. (Tr. December 11, 2001, p. 109; Tr. May 13, 2002, p. 33). We disagree.
C.R.E. 702 permits a qualified expert to offer an opinion if he possesses scientific, technical, or other specialized knowledge which will assist the trier of fact to understand the evidence or determine a fact in issue. The ALJ has wide discretion in determining whether a witness is qualified as an expert, and whether the expert's opinion will assist in resolving an issue in the case. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Because the determination of these matters is committed to the ALJ's sound discretion, we may not interfere with his decision unless an abuse is shown, as where the order is beyond the bounds of reason. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
In Chambers v. CF I Steel Corp., 757 P.2d 1171, 1172 (Colo.App. 1988), a hearing officer excluded a vocational rehabilitation counselor's testimony on the extent to which each of a claimant's physical restrictions rendered her unemployable. On appeal, the court held that the vocational characteristics of the restrictions was within the counselor's expertise and that the vocational impact of the claimant's impairment was not restricted to medical evidence. Similarly, in Rusco Building Products v. Putt, (Colo.App. No. 96CA1006, December 12, 1996) (not selected for publication), the court held that a vocational rehabilitation expert was not precluded from rendering an opinion on the vocational effects of a claimant's medical impairment. We perceive no appreciable distinction between expert testimony about the vocational impact of work restrictions and testimony about the side effects of medication prescribed to treat the industrial injury.
Brennen was qualified as an expert in vocational rehabilitation and vocational assessment. (Tr. December 11, 2001, p. 93). Brennen also testified that he has had experience with clients taking the type of prescription medications used by the claimant. Therefore, contrary to the respondents' contentions, Brennen established a foundation for his opinion that the side effects of the claimant's medication render it difficult for her to obtain and sustain employment. (Tr. December 11, 2001, 109; Tr. May 13, 2002, pp. 34, 39, 40). Consequently, the ALJ did not err in overruling the respondents' objection to Brennen's testimony about the vocational consequences of the claimant's prescription medication.
In any case, the claimant testified extensively, without objection, concerning the physical and mental side effects she experiences from taking the various medications prescribed to treat the industrial injury. (Tr. December 11, 2001, p. 38-39). The ALJ implicitly credited the claimant's testimony in finding that the prescription medications make it difficult for her to stay awake and concentrate during the work day. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (may consider findings which are necessarily implied by the ALJ's order). Consequently, Brennen's testimony was cumulative and the ALJ's error, if any, in crediting Brennen's testimony concerning the side effects was harmless. See § 8-43-310 C.R.S. 2002; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
III.
The respondents also contend the claimant's post-injury employment history compels the conclusion the claimant is capable of earning wages in other employment. Again we disagree.
The overall objective of the permanent total disability standard is to determine whether employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998). The question of whether the claimant has sustained her burden to prove permanent total disability is one of fact for the ALJ. We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8) C.R.S. 2002; Christie v. Coors Transportation Co., supra.
The availability of employment must be determined on a "case-by-case basis" and "will necessarily vary according to the particular abilities and surroundings of the claimant." Weld County School District RE-12 v. Bymer, supra at 557. Contrary to the respondents' argument, the claimant's ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired for and sustaining employment. See Cotton v. Econo Lube N Tune, W.C. No. 4-220-395 (January 16, 1997), aff'd. Econo Lube N Tune (Colo.App. No. 97 CA0193, July 17, 1997) (not selected for publication); Bond v. Mesa County School District, W.C. No. 3-103-251 (December 8, 1993). Thus, evidence the claimant has made efforts to return to work does not preclude a finding of permanent total disability where the evidence indicates the claimant is unable to sustain those activities for a sufficient period of time to maintain employment and earn wages. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
As argued by the respondents, the claimant worked part-time for the Grand Junction Womens' Clinic from approximately February 1997 to February 1998. However, the claimant stated the clinic changed ownership and she was not "rehired" by the new owner because the new owner did not want to provide the accommodations required by the claimant to perform her job duties. (Tr. December 11, 2001, pp. 41, 42).
The claimant then worked at Sutton Homes as a care giver for Alzheimer patients. The claimant testified that she knew after a few days on the job that she was physically unable to perform the fine dexterity skills required to dress the patients and prepare their meals. (Tr. December 11, 2001, p. 60). Consequently, she resigned after one and one-half weeks. (Tr. December 11, 2001, p. 43).
The claimant's third post-MMI employment began in April 1998. The claimant was hired by the Hilltop correctional facility to supervise at-risk teenage boys. The claimant stated that she was initially assigned to the evening shift. However, there was too much to do and too many reports to prepare on the evening shift, so she switched to the graveyard shift where she basically did nothing except visually check on the boys to make sure none had run away. (Tr. December 11, 2001, p. 44). Even when the employer allowed the claimant additional time to write her shift notes, the claimant was unable to perform the job. As a result, she testified that she gradually reduced her work schedule from four ten-hour shifts per week to one shift per week. However, after the claimant was issued a disciplinary action for making a medication error, she realized the effects of her medications were causing her work to become "sloppy," so she resigned. (Tr. December 11, 2001, p. 45).
Although the record is subject to conflicting inferences concerning the reason for the claimant's resignation from employment with Sutton Homes and Hilltop, the claimant's testimony amply supports the ALJ's determination that the claimant's post-MMI attempts to work were unsuccessful and, therefore, does not reflect an ability to earn wages. (Finding of Fact 17). Consequently, the ALJ determination is binding on review, and it is immaterial that Hammar opined the claimant remains employable in several occupations.
IV.
Finally, the respondents contend the ALJ lacked jurisdiction to adjudicate the issue of permanent total disability because the issue was closed by the claimant's failure to request a hearing on the issue within 60 days of the filing of their February 18, 1998 Final Admission of Liability. The claimant contends this argument was waived. We agree with the claimant.
The assertion that an issue is closed is an affirmative defense. In order to take advantage of such defense, it is the obligation of the respondents to raise the issue in a timely fashion or the defense is waived. Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977); Winters v. Cowen Transfer and Storage, W.C. No. 4-153-716 (December 28, 1995); see also Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo. 1982).
As argued by the claimant, the respondents' closure argument was not raised before the ALJ. ( See Tr. December 11, 2001, pp. 3-6). Thus, we conclude the argument was waived.
IT IS THEREFORE ORDERED that the ALJ's order dated June 18, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE
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. 2002. 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 November 3, 2003 to the following parties:
Charlotte Kingery Stubbs, 105 Calloon Creek Ln., White Water, CO 81527
Choice Hotels International, 2697 Highway 50, Grand Junction, CO 81503-1935
Gale Frost, Gallagher Bassett Services, Inc., P. O. Box 151509, Austin, TX 78715
J. Keith Killian, Esq., Joanna C. Jensen, Esq., and Damon J. Davis, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Hurtado