W.C. No. 4-443-429Industrial Claim Appeals Office.
February 18, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which reopened the claim and awarded temporary total disability benefits. The respondents contend the evidence does not support the ALJ’s finding of a worsened condition causally related to the industrial injury. Further, the respondents contend the ALJ erred in awarding temporary disability benefits because the claimant failed to prove disability, and because the attending physician released the claimant to regular employment. We affirm.
In September 1999 the claimant sustained compensable head and neck injuries when the truck he was operating was struck from the rear by a road grader. An authorized treating physician, Dr. Wunder, placed the claimant at maximum medical improvement (MMI) on May 9, 2000, with an 11 percent whole person impairment rating for a specific disorder of the cervical spine and reduced range of motion of the cervical spine. In August 2000 the respondents filed a Final Admission of Liability which denied liability for ongoing medical benefits after MMI. The admission was not contested and the claim was closed.
Late in 2000 the claimant began to experience worsening symptoms which included visual “floaters” (a form of impaired vision), headaches, tinnitus (ringing in the ears), and memory problems. In March 2001 the insurer referred the claimant to Dr. Barmatz for evaluation of the vision problem. Dr. Barmatz diagnosed a “work-related closed head injury” and “posterior vitreous detachment, right eye, with vitreous floaters” which are probably work-related.
In April 2001 Dr. Wunder referred the claimant to Dr. Peterson for treatment of the tinnitus. Dr. Peterson noted the claimant’s history of the work-related accident and opined some of the tinnitus was “likely” the result of nerve compression. Dr. Peterson prescribed a trial of Xanax for treatment of the tinnitus. (Peterson report, June 19, 2001).
On May 29, 2001, Dr. Wunder revised his previous diagnoses and added tinnitus of the left ear and muscle tension headaches. Later, Dr. Wunder added a diagnosis of bilateral tinnitus.
On July 16, 2001, the claimant underwent a Department of Transportation (DOT) physical. The claimant failed the physical because of memory problems, the use of “sedating” medications, and high blood pressure. Consequently, the claimant was disqualified from operating heavy equipment.
The ALJ credited the claimant’s testimony and found, based on a totality of the evidence, that by May 29, 2001, the claimant’s condition worsened and warranted additional treatment and temporary disability benefits. Specifically, the ALJ found that after Dr. Wunder placed the claimant at MMI in May 2000 the claimant developed the “new” injury-related problems of floaters, tinnitus, and memory loss. Further, based on the failure of the DOT examination, the ALJ found the claimant proved additional physical restrictions which impaired his earning capacity to a greater extent than existed on the date of MMI. Consequently, the ALJ awarded temporary total disability benefits commencing May 29, 2001, and continuing through the date of the hearing.
I.
On review, the respondents contend the evidence does not support the ALJ’s finding that the claimant suffered a worsening of condition which is causally related to the industrial injury. We disagree.
In order to reopen a claim based on a worsened condition, the claimant must prove a change in physical or mental condition which is causally related to the industrial injury. Whether the claimant has proved a worsened condition causally related to the injury is a question of fact for determination by the ALJ. Because reopening is discretionary, we may not interfere with the ALJ’s order unless an abuse of discretion is shown, as where the order is contrary to the law or unsupported by the evidence. See Jarosinski v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0332, December 5, 2002). Further, a claim may be reopened to award additional medical or temporary disability benefits Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000).
We must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We specifically note that causation is an issue of fact for the ALJ. The claimant need not produce medical evidence to establish causation. However, where expert medical opinion is presented it is the ALJ’s responsibility to assess the weight and credibility of the expert opinion. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, we find substantial evidence to support the ALJ’s finding that the claimant proved a worsened condition causally related to the industrial injury. Concerning the visual floaters, the claimant testified that the number of floaters increased after he was placed at MMI. Dr. Barmatz opined the floaters are probably work-related. Although Dr. Barmatz did not recommend additional treatment, the respondents essentially conceded the claimant needed evaluation of the floaters, especially since they did not admit liability for ongoing medical benefits after MMI. See Eby v. Wal-Mart Stores, Inc., W.C. No. 4-350-176
(February 14, 2001), aff’d. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0401, February 14, 2002) (not selected for publication) (diagnostic procedures are inconsistent with MMI because they assist in defining the claimant’s condition and are preliminary to determining whether additional treatment has a reasonable prospect for improving the claimant’s condition).
The respondents also assert there is no evidence the tinnitus was caused by the injury. Although there was conflicting evidence, the report of Dr. Peterson provides expert medical opinion in support of the ALJ’s finding concerning causation. The claimant’s testimony supports the finding of a worsening of the tinnitus. To the extent other findings were possible, the ALJ resolved the conflicts against the respondents. Moreover, Dr. Peterson prescribed treatment in the form of medication and hearing aids. Thus, the evidence supports the conclusion that the worsening warranted both diagnostic and curative treatment.
The respondents next contend the ALJ erred in finding the claimant’s memory loss was caused by the injury. The respondents point out the claimant did not report memory loss to Dr. Wunder, and the first report occurred in the July 2001 DOT physical. However, the ALJ credited the claimant’s testimony concerning progressive memory loss after suffering the head injury in the course of employment. (Tr. P. 11). Moreover, as the ALJ noted in his remarks at the conclusion of the hearing, there was no medical explanation offered for the memory loss other than the industrial injury. (Tr. P. 86). Under these circumstances the lay evidence was sufficient to support a finding of causation with respect to the memory loss. Cf. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
II.
The respondents next contend the ALJ erred in awarding any temporary disability benefits because Dr. Wunder, an attending physician, gave the claimant a written release to regular employment within the meaning of § 8-42-105(3)(c), C.R.S. 2002. The respondents point out that Dr. Wunder continuously released the claimant to “full duty” in reports from April 2001 through August 2001. Under the circumstances of this case, we are not persuaded by the respondents’ argument.
Section 8-42-105(3)(c) provides that temporary total disability benefits cease when the attending physician gives the employee a release to regular employment. Thus, the attending physician’s opinion concerning the claimant’s ability to return to regular employment is binding on the parties. Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995); McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
However, the attending physician’s opinion concerning the claimant’s ability to work is not binding when the claimant seeks to establish, in the first instance, a work-related industrial injury resulting in disability. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). We have previously applied the principles announced in Lymburn to the situation where the claimant seeks to reopen for a worsened condition and obtain additional temporary disability benefits. E.g. Tuttrow v. Gosney Sons Inc., W.C. No. 3-102-245 (October 24, 1997), aff’d. on other issues, Gosney and Sons Inc. v. Industrial Claim Appeals Office,
(Colo.App. No. 97CA1948, May 28, 1997) (not selected for publication). Further, the opinion of the treating physician is not entitled to any special weight concerning whether the claimant’s condition has worsened after MMI, or the cause of the worsening. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (opinion of Division-sponsored independent medical examination physician not entitled to any presumptive weight on issues of whether condition worsened after MMI and the cause of the worsening).
It follows that if the ALJ finds as a matter of fact that particular conditions have worsened after MMI, and that the worsening of these conditions was caused by the industrial injury, the attending physician’s release is binding under the statute only if it is based on the conditions the ALJ found to exist. Otherwise, the attending physician could usurp the ALJ’s statutory authority to decide the issues of worsened condition and causation. Cordova v. Industrial Claim Appeals Office, supra.
Applying these principles here, we note that Dr. Wunder did not diagnose memory loss caused by the injury and noted that the claimant never reported any memory loss. Thus, Dr. Wunder’s opinion that the claimant was able tor return to regular employment was based, in part, on a conclusion which is contrary to the ALJ’s finding of fact that the claimant did sustain disabling memory loss caused by the industrial injury. (Tr. Pp. 70-71). Under these circumstances, Dr. Wunder’s release may be characterized as “ambiguous” because it was at odds with the facts established by the ALJ’s order. Consequently, we perceive no error in the ALJ’s implicit decision to discredit Dr. Wunder’s opinion that the claimant was able to perform regular employment. Cf. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (ALJ had power to resolve ambiguity in treating physician’s opinion concerning whether or not claimant reached MMI).
The respondents next contend the record lacks substantial evidence to support the ALJ’s finding that the worsened condition produced additional restrictions which impaired the claimant’s earning capacity. Again, we disagree.
When seeking to obtain additional temporary disability benefits based on a worsened condition the claimant must prove the worsened condition caused additional physical restrictions which limited the capacity to earn wages beyond the limits which existed on the date of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997). The question of whether the claimant proved additional disability is one of fact for the ALJ. Lymburn v. Symbios Logic, supra.
The ALJ found, in part, that the additional loss of earning capacity was demonstrated by the results of the DOT examination which prevented the claimant from returning to employment as a truck driver. Although the respondents assert the claimant failed to prove the memory loss was caused by the injury, we have rejected this argument for the reasons stated above. The respondents also suggest the claimant was taken off sedating medication (Xanax) before the DOT examination, so the injury could not be the cause of his failure to pass the DOT examination. However, the record contains evidence the claimant was taking Xanax after the DOT examination. (Report of Dr. Peterson, July 27, 2001). Thus, there is ample evidence to support Finding of Fact 12.
In any event, the claimant testified the visual problems impaired his ability to operate heavy equipment, and the ALJ found this testimony persuasive. (Finding of Fact 13). Therefore, regardless of the DOT examination, the claimant proved the worsened condition caused additional impairment of his earning capacity.
It is true, as the respondents argue, that the claimant believed he was unable to return to work after being placed at MMI in May 2000. However, the respondents certainly have not taken this position, and in fact argued the claimant has always been able to return to his regular employment. The ALJ was not bound by the claimant’s opinion that he was unable to work after MMI, and implicitly rejected it.
The respondents’ remaining arguments are without merit. The ALJ found on substantial evidence that the claimant’s condition worsened and became disabling before the DOT report. The ALJ made a logical inference based on the report, and was not required to begin temporary disability benefits on the day the report was issued. Further, as we have held, the evidence supports the implicit conclusion that the claimant has not been released to regular employment. Therefore, the ALJ was not required to terminate temporary total disability benefits at any time after May 29, 2001.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced 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 thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe Street, Tower 3,Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________February 18, 2003_____ to the following parties:
Kenneth Griego, 2423 E. 18th St., Greeley, CO 80631
Bemas Construction, Inc., 6890 S. Tucson Way, #105, Englewood, CO 80112
Anita Bruch, Fremont Industrial Indemnity Company, P.O. Box 70015, Boise, ID 83707
William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Brett R. Parnes, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
By: _________A. Hurtado______________