W.C. No. 3-920-202Industrial Claim Appeals Office.
February 17, 2000
ORDER
The claimant and the respondents separately petitioned for review of an order of Administrative Law Judge Stuber (ALJ) which denied permanent total disability benefits and medical benefits for a hot tub, but awarded permanent partial disability benefits based on 9 vocational impairment. We affirm the ALJ’s order denying permanent total disability and medical benefits, but set aside the award of permanent partial disability benefits and remand the matter for entry of a new order on that issue.
The claimant suffered a compensable back injury in 1988 while working as a mechanic. Maximum medical improvement (MMI) was reached in April 1993. On September 29, 1993, the respondents filed a Final Admission of Liability which admitted liability for 6 percent permanent partial disability.
On August 2, 1995, ALJ Wheelock reopened the claim on the ground there had been a change in the claimant’s condition and awarded additional medical and temporary disability benefits. ALJ Wheelock’s order was upheld on review. The claimant reached MMI from the worsened condition on December 5, 1995, and the respondents did not admit liability for any additional permanent disability benefits. The claimant then applied for a hearing on the issues of permanent total disability, permanent partial disability, and medical benefits.
The ALJ determined the claimant failed to prove his entitlement to permanent total disability benefits and medical benefits for a hot tub. However, crediting the opinion of vocational expert David Zierk (Zierk), the ALJ found that the claimant sustained a 9 percent loss of future earning capacity due to the injury. Therefore, the ALJ ordered the respondents to pay additional benefits based on 9 percent permanent partial disability. Both parties timely appealed.
I.
The claimant’s petition to review alleges generally that the ALJ erroneously denied his requests for the hot tub and permanent total disability benefits, or in the alternative, a greater award of permanent partial disability benefits. However, the claimant has not filed a brief in support of the petition to review. Therefore, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
A.
A claimant is entitled to medical benefits after MMI upon a showing that further medical treatment will reasonably be necessary to cure and relieve the claimant from the effects of the injury or prevent a further deterioration of the claimant’s condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). However, the respondents remain free to contest liability for a particular treatment, and then it is the claimant’s burden to prove that the disputed treatment is reasonable and necessary. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
The question of whether the claimant has sustained his burden of proof is one of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Therefore, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
There is substantial evidence in Dr. Polanco’s testimony, which the ALJ expressly credited, to support the ALJ’s finding that the claimant failed to prove his entitlement to a hot tub. Dr. Polanco opined that the Workers’ Compensation Treatment Guidelines do not recognize hot tubs as a treatment modality for chronic pain and that the medical literature does not support the conclusion that hot tubs are reasonable and necessary in the treatment of chronic pain. (Tr. January 25, 1999, pp. 79, 99.) Under these circumstances, we may not interfere with the order denying the hot tub.
B.
The legal standard which governs this 1988 injury provides that a claimant is permanently and totally disabled if he has lost and will not regain “efficiency in substantial degree as a working unit in the fields of general employment.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). The claimant bears the burden to prove permanent total disability by a preponderance of evidence, and whether the claimant has sustained his burden is a factual question for the ALJ. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, October 28, 1999). Accordingly, the substantial evidence test governs our review of the ALJ’s order denying permanent total disability benefits.
The record contains conflicting evidence concerning the claimant’s residual vocational abilities. Within his prerogative, the ALJ resolved the conflict in favor of the respondents by crediting the opinions of Dr. Polanco and Dr. Lovejoy. Based on a review of the surveillance videos of the claimant’s 1996 work as a tree remover, Dr. Lovejoy opined the claimant is capable of working in the medium to heavy work category. (Dr. Lovejoy report August 26, 1996.) Similarly, Dr. Polanco opined that the surveillance films demonstrated an ability to perform medium to medium-heavy work.
The ALJ also relied on Zierk’s testimony. Zierk opined that the claimant retains access to a number of jobs in the medium to heavy work category and retains efficiency in the fields of general employment. (Tr. January 25, 1999, p. 127.) Because the ALJ’s determination that the claimant failed to prove he is permanently and totally disabled is supported by substantial evidence, it is binding on review, and it supports the ALJ’s denial of permanent total disability benefits.
II.
Both parties have contested the award of permanent partial disability benefits. The claimant contends the ALJ erred in failing to find he sustained more than 9 percent permanent partial disability. The respondents contend the ALJ erroneously awarded any additional permanent disability benefits. They argue, inter alia, that where the claim for permanent partial disability benefits is based on a worsening of condition, no additional permanent partial disability benefits are due unless the worsened condition caused additional permanent disability. The respondents argue that because the ALJ found no increased disability as a result of the claimant’s worsened condition, the ALJ’s findings do not support the award. We conclude that the ALJ’s findings are insufficient to permit appellate review of the permanent partial disability award.
Under the law as it existed prior to July 1, 1991, which is applicable to this claim, permanent partial disability benefits were awarded where the industrial injury impaired the claimant’s future earning capacity. See Vail Associates Inc. v. West, 661 P.2d 1187 (Colo. 1982); Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941); Matthews v. Industrial Commission, 627 P.2d 1123
(Colo.App. 1980) (no permanent disability awarded for loss of smell). Section 8-43-303(1), C.R.S. 1999, allows an ALJ to reopen a permanent disability award on the grounds of mistake, error, or change of condition. The statute also provides that upon reopening, benefits previously ordered “may be ended, diminished, maintained or increased.”
Proof of increased permanent disability is not required where the claimant alleges a worsening of condition and only seeks additional temporary disability and medical benefits. See Richards v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0593, January 20, 2000); Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). However, in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the court held that additional temporary disability benefits are not payable unless the worsened condition “caused a greater impact” upon the claimant’s work capacity than existed at the time of MMI. Based on the court’s opinion in that case, we conclude that the claimant is not entitled to additional permanent partial disability benefits following a worsening of condition after MMI unless the claimant’s worsened condition caused a greater impact on the claimant’s permanent earning ability than existed at the time of the original award.
Evidence that the worsened condition has caused additional temporary disability and entitled the claimant to further medical benefits is not dispositive of the claimant’s entitlement to additional permanent partial disability benefits. This is true because the additional medical treatment may effectively restore the claimant to his previous condition at the time of the original MMI determination, or even reduce his overall permanent disability. Rather, to obtain additional permanent partial disability benefits following a worsening of condition, the claimant must establish that the worsened condition caused an increase in his degree of permanent disability. See
8 Larson Workers’ Compensation Law,§ 83.32(c). Consequently, an award of additional permanent partial disability benefits due to a worsened condition after MMI is proper only where the claimant proves that the worsened condition caused increased disability and earning capacity impairment.
The ALJ awarded additional permanent partial disability benefits, but he did not make findings which determined whether the claimant had increased permanent partial disability as a result of the worsened condition. Instead, the ALJ’s award was simply based on Zierk’s testimony that the claimant has 9 percent vocational impairment attributable to the industrial injury. However, Zierk testified that the claimant’s functional abilities have improved since the original award and that his work capacity is the same as it was prior to the reopening, which he opined equaled a permanent vocational loss of 9 percent. (Tr. January 25, 1999, pp. 135, 136, 153, 156, 160.) The ALJ expressly noted this evidence. (Finding of Fact 11.) However, it is unclear from the ALJ’s order whether he found as a matter of fact that the claimant’s “condition has remained essentially the same and that his overall functional capacity has not changed since” 1992, or whether he merely found that Zierk testified there was no change. Under these circumstances, we conclude the ALJ’s findings of fact are insufficient to ascertain whether the ALJ erred in awarding additional permanent partial disability benefits.
As argued by the claimant, the record contains some evidence which, if credited, might support a finding that the claimant sustained additional permanent physical disability as a result of the worsened condition. Dr. Hall opined that the claimant’s permanent physical impairment increased from 6 percent to 20 percent due to the worsened condition. (Dr. Hall October 23, 1996.) The ALJ could reasonably infer from Dr. Hall’s rating that the increased medical impairment caused the claimant to suffer an additional vocational loss. However, Dr. Polanco and Dr. Lovejoy opined that the claimant’s permanent physical disability has not significantly changed since prior to the “reopening.” (Tr. January 25, 1999, pp. 52, 94, 106.) The evidence is susceptible of conflicting inferences which must be resolved by the ALJ. On remand, the ALJ shall make additional findings of fact which resolve the conflicts in the evidence and determine whether the claimant’s worsened condition caused an increase in his permanent partial disability. If the ALJ determines that the worsened condition caused additional permanent partial disability, then additional permanent partial disability benefits may be awarded.
We reject the claimant’s argument that he is entitled to additional permanent partial disability benefits on the ground that the original impairment rating was incorrect. The claimant is essentially contending that the original award was a “mistake.” However, the claim was reopened on the ground that there had been a change in the claimant’s physical condition, not on the ground of mistake. Under these circumstances, the claimant was not entitled to relitigate issues such as his degree of disability which were decided at the time of the original award. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, October 28, 1999), citing 8 Larson Workers’ Compensation Law, § 81.32.(a). To the contrary, the ALJ was restricted to assessing the extent of improvement or permanent worsening of the claimant’s condition. See Larson § 81.33(a).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 29, 1999, is set aside insofar as it awarded additional permanent partial disability benefits, and the matter is remanded to the ALJ for additional findings and a new order on that issue, consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed February 17, 2000
to the following parties:
Michael A. Frazier, P.O. Box 363, Calhan, CO 80808
Montgomery Ward Co., Inc., 2420 E. Pikes Peak Ave., Colorado Springs, CO 80909-6005
Standard Fire Insurance Company, Aetna Life Casualty, P.O. Box 173712, Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4340 (For Claimant)
Robert A. Weinberger, Esq. and Julie A. Halaby, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
BY: A. Pendroy