W.C. Nos. 4-152-098, 4-149-690Industrial Claim Appeals Office.
May 16, 2001
FINAL ORDER
Respondent Porter Memorial Hospital seeks review an order of Administrative Law Judge Felter (ALJ) which awarded permanent total disability benefits, denied apportionment, declined to impose liability on the Subsequent Injury Fund (SIF), and determined that Dr. Nielsen is an authorized provider. We affirm.
The ALJ found the claimant sustained an injury to her left knee on July 28, 1992, but returned to her regular employment as a respiratory therapist. The claimant sustained a second injury on September 23, 1992, in which she injured her low back and reinjured the left knee.
Relying principally on the claimant’s testimony, the results of a functional capacities evaluation, the reports of Dr. Nielsen, and the opinion of David Zierk, the claimant’s vocational expert, the ALJ found the physical and psychological effects of the industrial injury render the claimant permanently and totally disabled. The ALJ declined to assign liability to the SIF because he credited testimony of the SIF’s vocational expert that the July industrial injury did not contribute to the claimant’s total disability.
Further, the ALJ found that treatment rendered by Dr. Nielsen is authorized pursuant to a referral from a prior treating physician, Dr. Burk. Specifically, the ALJ credited evidence that when the claimant moved from Colorado to Nebraska in June 1993, Dr. Burk stated the claimant should be placed in a pain program and referred to a physician in Nebraska for management of her medications.
I.
On review, the respondent first contends the evidence does not support the ALJ’s finding that Dr. Nielsen is an authorized physician. In any event, the respondent asserts there is no evidence that treatment rendered by Dr. Nielsen, particularly as it relates to the claimant’s gastrointestinal problems, is related to the injury. We disagree.
Treatment rendered as a result of a referral in the normal progression of authorized treatment is compensable. Whether such a referral has been made is a question of fact for the ALJ. Further, there is no requirement that all possible providers either in the claimant’s locale or within Colorado must be sought before an out-of-state provider is authorized. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Finally, “general referrals” to out- of-state physicians may be within the normal progression of authorized treatment. See Iverson v. Safeway Stores, Inc., W.C. No. 3-824-151 (October 7, 1988).
The respondent’s argument notwithstanding, the record contains ample evidence of a general referral by Dr. Burk to a physician in Nebraska. Dr. Burk explained the claimant required a pain clinic and needed a Nebraska physician to monitor her medications. (Letters of Dr. Burk dated June 17, 1993, July 7, 1993).
Insofar as the respondent argues there is not sufficient evidence that Dr. Nielsen’s treatment was causally related to the industrial injury, we disagree.
The question of whether the claimant proved the need for medical treatment was caused by the industrial injury is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 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, 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). Although the claimant need not produce expert medical evidence on the issue of causation, where such evidence is presented it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the claimant testified that the industrial injury caused her significant emotional distress, and that her gastrointestinal symptoms did not develop until after the September industrial injury. (Tr. pp. 26, 38). Further, the claimant’s psychologist, Dr. Canell, issued reports linking the claimant’s psychological condition to the loss of her professional career following the industrial injury. Dr. Canell also reported that, despite personal difficulties involving her family, the claimant “did not, until being inhibited medically from working in her profession exhibit the irritable bowel syndrome, spastic colon and peptic ulcers which she now experiences to a quite severe degree.” Under these circumstances, there is substantial evidence from which the ALJ could infer a causal relationship between the psychological effects of the industrial injury and the gastrointestinal symptoms treated by Dr. Nielsen. Therefore, we may not interfere with the order.
II.
The respondent next contends the award of permanent total disability benefits is not supported by substantial evidence in the record. The respondent relies on the reports of two physicians, including that of a Division-sponsored medical examination (DIME) physician, who opined the claimant is capable of performing employment. Further, the respondent asserts the ALJ was required to credit DIME physician’s opinion concerning the claimant’s ability to work unless it was overcome by clear and convincing evidence. We disagree.
The claimant must prove permanent total disability by establishing that the effects of the industrial injury render her unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2000. In determining whether the claimant has proven permanent total disability the ALJ may consider the effects of the industrial injury in light of the claimant’s human factors, including the claimant’s age, work history, general physical condition, prior training and experience. The crux of the test is the existence of employment which is reasonably available to the claimant under his or her particular circumstances. Ultimately, the question of whether the claimant has proven permanent total disability is one of fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Joslins Dry Goods Co. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0718, February 1, 2001). Because determination of the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Weld County School District RE-12 v. Bymer, supra.
The respondent’s argument notwithstanding, the ALJ was not required to give any special weight to the opinion of the DIME physician with respect to the claimant’s ability to perform employment. Section 8-42-107(8)(c), C.R.S. 2000, provides that a DIME physician’s finding of “medical impairment” is binding unless overcome by clear and convincing evidence. However, nothing in this statute requires that a DIME physician’s opinion concerning the claimant’s ability to perform employment is entitled to special weight. Thus, we have previously rejected the argument advanced by the respondent in this case, and decline to depart from our prior holdings. See Cooper v. Sunny Acres Villa Inc., W.C. No. 4-136-519 (February 5, 1998); Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 27, 1994) cf. Delaney v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0081, September 14, 2000) (DIME physician’s report not a prerequisite to determining whether the claimant has sustained a scheduled or non- scheduled impairment).
It follows there is substantial evidence in the record to support the ALJ’s finding of permanent total disability. The ALJ explicitly credited the claimant’s testimony concerning her limitations, Mr. Zierk’s expert opinion that the claimant is unable to find work, and the results of the functional capacities evaluation. The ALJ also discredited the evidence relied upon by the respondent. The fact the evidence might have supported a different result affords no basis for appellate review.
Insofar as the respondent reiterates its argument that there is insufficient evidence to establish that the claimant’s disability was caused by the industrial injury, we reject that argument for the reasons stated above.
III.
Relying on Absolute Employment Services v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999), the respondent next contends the ALJ erred by failing to “apportion” the claimant’s permanent total disability benefits based upon “medical, family, emotional, and psychological problems” which the claimant experienced after reaching MMI on June 23, 1993. We find no error.
In order to receive permanent total disability benefits the claimant was required to establish there was a direct causal relationship between the industrial injury and the disability. This standard requires the ALJ to determine the nature and extent of the claimant’s residual impairment from the industrial injury. Resolution of this issue is a question of fact for the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra; Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986). If the claimant succeeds in establishing the requisite causal connection, there is no statutory authority for “apportioning” the claimant’s benefits based on injuries or disabilities which occur subsequent to MMI and the commencement of permanent total disability benefits. At best, former § 8-42-104(2), C.R.S., provided for apportionment based on a “previous disability as it existed at the time of the subsequent injury.” Indeed, the issue in Absolute Employment Services v. Industrial Claim Appeals Office, supra, was whether the statute permits apportionment based on congenital impairment. The case had nothing to do with apportionment based on post-MMI injury and disability.
Thus, the respondent’s argument is not one of apportionment. Rather, if the ALJ’s order was erroneous, it was because post-MMI injuries or disabilities constituted intervening causes of the claimant’s permanent and total disability. However, resolution of this issue was one of fact for the ALJ. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra (question of whether permanent total disability was caused by the effects of the industrial injury or subsequent intervening injury was one of fact for the ALJ). For the reasons stated above, we conclude that substantial evidence supports the ALJ’s determination the claimant’s permanent and total disability was caused by the sequalae of the industrial injury. The respondent’s argument for “apportionment” based on post-MMI developments is without merit.
IV.
The respondent next contends the ALJ erred in failing to apportion liability to the SIF under § 8-46-101(1)(a), C.R.S. 2000. The respondent points out the claimant testified she had knee pain after she returned to work following the July 28, 1992 injury. The respondent further relies on the opinion of Dr. Shaw who apportioned the claimant’s knee problems “50 % each to the July and September injuries.” We perceive no error.
The question of whether injuries have “combined” to render the claimant permanently and totally disabled is one of fact for determination by the ALJ. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999); General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985). Here, the ALJ was persuaded that the July injury did not “combine” with the September injury to produce permanent total disability because the claimant returned to work after the July injury. Further, the ALJ credited the expert opinion of the SIF’s vocational expert that the July 1992 the injury did not result in any vocational loss. (Tr. p. 97). Thus, there is substantial evidence to support the ALJ’s order, and the existence of conflicting evidence does not negate the ALJ’s finding. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, supra.
Insofar as the respondent argues the ALJ’s findings are insufficient because he did not discuss particular evidence, we find no error. The ALJ is under no obligation to discuss evidence he finds is not dispositive of the issues involved. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The basis of the order is readily apparent from the findings which were entered.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 2000, is 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 16, 2001 to the following parties:
Linda Stadig-Shaner, 312 E. “D” St., North Platte, N.E. 69101
Richard Osborn, Porter Memorial Hospital, 2525 S. Downing St., Denver, CO 80203
Terry M. Lee, OHMS, Inc., P. O. Box 173682, Denver, CO 80217-3682
Subsequent Injury Fund, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Richard H. Glasman, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent)
Brent A. Eisen, Esq., and Gregg E. Carson, Esq., 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
BY: A. Pendroy