Opinion
W.C. No. 4-712-246.
January 7, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 18, 2008, that denied his request for temporary total disability (TTD) benefits and denied the his request a for change of physician. We affirm.
The ALJ made the following findings of fact. The claimant sustained an admitted injury on January 25, 2007. The claimant returned to work at his regular job for another eight weeks. The claimant quit his employment on March 2, 2007 and his wage loss after that date resulted from his volitional decision to quit. Therefore, the ALJ denied the claimant's request for TTD from March 2, 2007 through May 16, 2007. The claimant was examined by Dr. Brodie on May 17, 2007 who initially diagnosed traumatic brain injury and placed work restrictions on the claimant. However, after further treatment and work-up, Dr. Brodie determined that the claimant's pain was of nonorganic etiology and encouraged the claimant to be active and to work. The ALJ inferred from Dr. Brodie's testimony that the claimant's condition had not worsened as of May 17, 2007. The claimant failed to show that his condition changed such that he was no longer able to perform his regular work as of May 17, 2007. The ALJ denied the claimant's request for TTD benefits from May 17, 2007 and ongoing. There was no persuasive evidence showing that the claimant had reasonably developed a mistrust of Dr. Brodie or that he had been unable to communicate with Dr. Brodie. The ALJ denied the request for change of physician.
I.
On appeal, the claimant first contends that the ALJ erred in ruling that the claimant had not demonstrated that his condition had changed such that he was no longer able to perform his regular work. The claimant argues that there is no evidence to support the ALJ's finding and therefore the ALJ erred in denying TTD benefits.
The termination statutes provide that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." Sections 8-42-103(1)(g) C.R.S. 2008, 8-42-105(4) C.R.S. 208; see Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004). However, in Anderson v. Longmont Toyota Inc. supra, the supreme court held that the termination statutes do not bar temporary disability wage loss claims when the worsening of a prior work-related injury incurred during that employment causes the wage loss.
The burden of proof is on a claimant who has been found responsible for a termination to establish a subsequent worsening of condition and consequent wage loss. Green v. Job Site, Inc., W. C. No. 4-587-025 (July 19, 2005). The question of whether a worsened condition has caused the claimant's wage loss following a termination from employment is one of fact for determination by the ALJ. Hammack v. Falcon School District 4, W.C. No. 4-637-865 (October 23, 2006); aff'd sub nom. Hammack v. Industrial Claim Appeals Office, No. 06CA2344 (Colo.App. Dec. 6, 2007) (not selected for publication),
Because these issues are factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
We first note that the ALJ found that the claimant's employment terminated when the claimant quit his employment on March 2, 2007. This finding is supported by the testimony of the owner of the employer who testified that the claimant quit. Werth Depo. at 8-9. This in our view constitutes substantial evidence to support the ALJ's determination that the claimant was responsible for his termination. Therefore, we are not persuaded to interfere with the ALJ's ruling that because the claimant was responsible for the termination of his post-injury employment that his wage loss may not be attributable to his industrial injury.
Next, on the issue of worsening, the ALJ expressly found that the claimant's condition did not worsen after his voluntary termination from employment. In his order, the ALJ stated that he credited the claimant's own testimony that his condition had remained the same and has not changed since he was injured and that the claimant was able to perform his regular work following his injury until he quit. The claimant challenges this finding and directs us to portions of his testimony where he stated that after he stopped working for the employer his condition gradually got worse.
We first note that an ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the claimant did testify that after his termination, his condition got worse. However, the claimant also testified that after the injury and before his termination, he had frequent pain in his head that lasted all day long. Tr. (3/31/08) at 130. The claimant further testified that right after his injury he had pain in his head all day, every day. Tr. (3/31/08) at 121. The ALJ was not compelled to accept the parts of the claimant's testimony indicating his condition had worsened. Instead, the ALJ could make the reasonable inference from the claimant's testimony that his head hurt all day every day before his termination that the claimant had not suffered a worsening of his condition following his termination when his description of his pain was essentially the same. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (to the extent that a witness's testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions).
Further support for this inference is found in the claimant testimony that he was able to perform his regular work following his injury on January 25, 2007 until he quit his work with the employer over a month later on March 2, 2007. Tr. (3/31/08) at 144. Further, the claimant was able to perform this work despite the fact that he had testified during this period he had pain in his head all day every day. The claimant further testified that his treating physicians did not impose any work restrictions until he was examined by Dr. Brodie on May 17, 2007. Tr. (3/31/08) at 144-45. The fact that the claimant was capable of working for the employer for weeks after his accident and only sought TTD benefits after his termination can be considered by the ALJ in his determination that the claimant's condition had not worsened.
Further, the ALJ made the following findings with record support. Dr. Brodie specializes in treating patients with delayed recovery. Tr. (3/31/08) at 166. The authorized treating physician transferred the claimant's care to Dr. Brodie because the claimant's treatment was not progressing as expected and because of involvement of the claimant's counsel. Tr. (3/31/08) at 167-68, 184-85, 197. Dr. Brodie first examined the claimant on May 17, 2007, when he reported symptoms of cervicogenic headaches and pain. Tr. (3/31/08) at 168-69. Dr. Brodie noted significant signs that the claimant was engaging in symptom magnification. Tr. (3/31/08) at 195; Exhibit 2 at 216.
Dr. Brodie did not believe the claimant's symptoms represented a traumatic brain injury because this type of injury naturally improves without treatment. Tr. (3/31/08) at 170-71. A CT scan study of the claimant's brain showed the absence of any subdural hematoma, such that Dr. Brodie felt a traumatic brain injury diagnosis medically improbable. Tr. (3/31/08) at 170, 181. On May 17, 2007, Dr. Brodie released the claimant to modified-duty work and imposed physical activity restrictions of no lifting greater than 15 pounds. Exhibit 2 at 109. Dr. Brodie imposed these restrictions because of the claimant's initial report of neck pain, which he later stopped reporting. Tr. (3/31/08) at 187. Dr. Brodie persuasively testified that, after further treatment and work-up, he determined that the claimant's pain was of nonorganic etiology. Tr. (3/31/08) at 173-74, 183. Dr. Brodie stated that the claimant should be encouraged to be active and to work. Tr. (3/31/08) at 182-83.
In our view, there was substantial evidence to support the ALJ's determination that the claimant had not demonstrated that his condition worsened after his voluntary termination from employment such that he was no longer able to perform his regular work. This evidence included the medical opinions outlined above and even portions of the claimant's own testimony credited by the ALJ. Therefore, we discern no error in the ALJ's determination that the claimant's condition had not worsened.
On the issue of worsening the claimant also argues that the respondents filed a general admission admitting the claimant had sustained a worsening of condition based upon a medical report from Dr. Walker dated 3/23/2007. Exhibit H at 126; Exhibit A at 41. Therefore, the claimant contends that the respondents had waived any argument that the claimant's condition did not worsened. Of course as a general principal, once an employer admits liability, it is bound by that admission and must pay benefits accordingly. Colorado Compensation Ins. Auth. v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000).
Here the respondents filed a final admission of liability dated February 15, 2007 admitting for medical benefits based upon a medical report from Dr. Walker dated 2/11/2007. Exhibit H at 131; Exhibit A at 41. The general admission of liability dated March 29, 2007 relied upon by the claimant here only admitted for medical benefits due to a worsening of condition based upon Dr. Walker's report of March 23, 2007. Exhibit H at 126; Exhibit A at 41. The general admission did not admit for any TTD benefits.
The respondents did voluntarily reopen the claim on the issue of medical benefits based on the claimant's worsened condition. The ALJ found that the claimant, at the time of the hearing, was receiving adequate treatment by Dr. Brodie. Other than a change of physician, the issue of medical benefits was not litigated at the hearing. Instead, here the issue of "worsening" was raised in connection with the claimant's request for temporary disability benefits. We understand the ALJ's determination that the claimant's condition did not worsen after his termination from employment to have been made in the context of the claimant's claim for additional temporary disability benefits instead of the need for medical benefits as admitted to by the respondents in their admission.
As noted above in Anderson v. Longmont Toyota Inc., the supreme court held that the termination statutes do not bar temporary disability wage loss claims when the worsening of a prior work-related injury incurred during that employment causes the wage loss. In Anderson, the court held that the termination statutes did not constitute a permanent bar to the receipt of TTD following a discharge from employment for cause. Rather, although a claim for TTD was barred when the termination caused the wage loss, a claim was not barred "when the worsening of a prior work-related injury incurred during [the] employment causes the wage loss." Anderson, 102 P.3d at 326. Anderson v. Longmont Toyota Inc. involved situations where it was the worsened condition and not the termination of employment that caused the wage loss. It was in this context that the ALJ expressly found that the claimant's condition did not worsen after his voluntary termination from employment. We are not persuaded to interfere with the ALJ's determination that the claimant failed to show that his condition changed such that he was no longer able to perform his regular work as of May 17, 2007.
We acknowledge that an admission that the claimant's condition has worsened after MMI so that medical treatment is currently necessary is evidence that could be considered by the ALJ in determining whether worsening of a prior work-related injury causes the wage loss. However, in our opinion, a demonstration of a worsening which causes a need for medical treatment does not compel an award of additional TTD. The question of whether such a worsening has caused the claimant's wage loss following a termination from employment remains one of fact for determination by the ALJ. Fatin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). Therefore, while we acknowledge that the respondents are bound by their admission for medical benefits we are not of the opinion that the ALJ erred in failing to find that the admission binds the respondents to reopen the claim and pay the claimant temporary disability benefits.
II.
The claimant next contends that the ALJ erred in denying his request for a change of physician. The claimant argues that he has lost his trust in his treating physician and therefore is entitled to a change of physician. The claimant also notes that Dr. Brodie agreed that if patient had lost his trust he would not mind a change. The claimant testified he would like to be treated by Dr. Yamamoto.
A claimant may seek a change of physician upon a "proper showing." Section 8-43-404(5), C.R.S. 2008; Carlson v. Industrial Claim Appeals Office 950 P.2d 663 (Colo.App. 1997). Section 8-43-404(5) does not contain a specific definition of a "proper showing." Consequently, it has been previously held the ALJ possesses broad discretionary authority to grant a change of physician depending on the particular circumstances of the claim. See Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998); Merrill v. Mulberry Inn, Inc., W.C. No. 3-949-781 (November 16, 1995). Because of the discretionary nature of the issue, we may not interfere with the ALJ's order unless an abuse of discretion is shown. An abuse exists if the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1995).
The ALJ found that the claimant failed to make a proper showing for a change in physician from Dr. Brodie. The ALJ found that there was no persuasive evidence showing the claimant had reasonably developed a mistrust of Dr. Brodie or that he had been unable to communicate with Dr. Brodie such that Dr. Brodie's treatment failed to prove effective in relieving the effects of his injury. Crediting Dr. Brodie's testimony, the ALJ found the claimant had been receiving adequate medical treatment.
Here Dr. Brodie was accepted as an expert in occupational medicine without objection. Tr. (3/31/2008) at 167. Dr. Brodie testified that he would be happy to continue to treat the claimant. Tr. (3/31/2008) at 179. Dr. Brodie testified that he spoke a little bit of Spanish and that the interpreting had been good. Tr. (3/31/2008) at 189.
The claimant requested a change of physician to Dr. Yamamoto without presenting any specific evidence regarding Dr. Yamamoto's qualifications or abilities to treat the claimant. Tr. (3/31/2008) at 138. The claimant stated he was not happy with the doctors who were treating him because they were treating him only for his neck and he wanted them to treat his head. Tr. (3/31/2008) 148-49. However, it is clear that Dr. Brodie considered a possible closed-head injury as well as a neck problem. Tr. (3/31/2008) at 170-71. Dr. Brodie's assessment was that headache pain followed a blunt injury and the claimant presented an "atypical headache presentation." Exhibit I at 166.
We are not convinced that the record established that the ALJ's order is beyond the bounds of reason. In our opinion, the record supports the ALJ's determination that the claimant failed to bear his burden of showing entitlement to a change of physician. Under these circumstances, we perceive no basis on which to interfere with the ALJ's finding. We have reviewed the claimant's additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order issued June 18, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
DANIEL LOZA, DENVER, CO, (Claimant).
KEN'S WELDING, C/O: KEN'S WELDING CORPORATION, DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICES OF KEN DANIELS, Attn: KEN DANIELS, ESQ., DENVER, CO, (For Claimant).
RUEGGSEGGER, SIMONS, SMITH STERN, Attn: DAVID L SMITH, ESQ., DENVER, CO, (For Respondents).