W.C. No. 4-526-000Industrial Claim Appeals Office.
April 29, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant proved a compensable injury, and awarded temporary disability and medical benefits. We affirm the award of temporary disability benefits, set aside the award of medical benefits, and remand the matter for entry of a new order on the issue of medical benefits.
On January 23, 2000, the claimant suffered a cervical injury in a motor vehicle accident not related to the employment. As a result of the injury, the claimant underwent cervical surgery.
On December 17, 2001, the claimant reinjured his neck in a work-related motor vehicle accident. The claimant testified he heard a snap in his neck and experienced intense pain when he accidentally hit a pole while backing a vehicle. The claimant did not return to work after the December 17 accident. In March 2002, the claimant underwent additional cervical surgery.
The ALJ found the claimant was able to work and did not become temporarily totally disabled until December 17. Further, the ALJ determined the claimant did not require additional surgery until the December 17 accident. Therefore, the ALJ determined the claimant sustained his burden to prove the industrial accident caused a compensable aggravation of the 2000 injury. The ALJ’s order requires the respondents to pay temporary total disability benefits commencing December 18, 2001 and continuing until terminated by law. The ALJ also ordered the respondents to pay for reasonable and necessary medical treatment of the December 17 injury.
I.
On review, the respondents contend the record does not support the ALJ’s finding that the claimant suffered a compensable injury on December 17. We disagree.
A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. Section 8-41-301(1)(c), C.R.S. 2002. The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury if an industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169
(Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). The employer takes an injured worker as it finds him, and if a pre-existing physical condition combines with a work-related injury or disease to render the worker disabled, the employer must compensate the worker for the entire disability. H H Warehouse v. Vicory, supra; CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ. The ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of conflicting evidence or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard, it is the ALJ’s sole prerogative to assess the weight and sufficiency of the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
The respondents contend that because the claimant was still receiving treatment for the 2000 injuries at the time of the industrial injury, the record does not support the ALJ’s determination that the claimant’s preexisting condition was “dormant” at the time of the industrial injury. We disagree.
Contrary to the respondents’ contention the ALJ explicitly recognized that the claimant continued to receive treatment for the 2000 injuries. However, the ALJ determined the preexisting condition was stable because no further surgery was necessary and it was “dormant” because it did not disable the claimant from working. (See Finding of Fact 4).
There is substantial evidence in the record to support the ALJ’s finding that the December 17 aggravation was sufficient to temporarily disable the claimant from continuing his full-time employment. Consequently, the ALJ’s finding that the claimant proved a compensable injury must be upheld. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988)
II.
Next, the respondents contend the ALJ erroneously awarded temporary total disability benefits after April 4, 2002, the date they contend Dr. Pineiro placed the claimant at maximum medical improvement (MMI). In particular, the respondents argue that because the claimant did not dispute Dr. Pineiro’s opinion by requesting a Division-sponsored independent medical examination (DIME), temporary disability benefits terminated on April 4, 2002. Again, we disagree.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2002. Once these requirements are established, benefits continue until the respondents prove grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995). Section 8-42-105(3)(a), C.R.S. 2002, provides for termination of temporary disability benefits when the claimant reaches MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
Sections 8-42-107(8)(b)(I) (II), C.R.S. 2002, provide that the initial determination of MMI is to be made by an authorized treating physician. The party disputing the treating physician’s opinion must obtain a DIME. As argued by the respondent, the statute precludes an ALJ from resolving a MMI dispute until the completion of the DIME. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). The claimant’s time period to select a DIME commences with the mailing date of an insurer’s final admission of liability that includes an impairment rating. Section 8-42-107.2(a)(I)(A), C.R.S. 2002.
However, where the treating physician issues conflicting or ambiguous reports, a DIME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning whether the treating physician has issued an opinion on MMI. See Town of Ignacio v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 01CA2024, November 7, 2002); Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Preliminarily, we reject the claimant’s contention that the issue of MMI was not endorsed for adjudication. At the commencement of the hearing, the respondents’ attorney argued that the claimant’s entitlement to temporary total disability benefits ended April 4, 2002, when Dr. Pineiro placed the claimant at MMI. (Tr. pp. 9, 10). Further, the respondents presented Dr. Pineiro’s deposition testimony, (Tr. p. 10) which arguably contains some evidence that Dr. Pineiro found the claimant to be at MMI. We also note that in the “Issues” section of the ALJ’s order, the ALJ stated she had to adjudicate the claimant’s entitlement to temporary disability benefits “on going until maximum medical improvement.” (See Findings of Fact p. 1).
Although the ALJ made no specific findings of fact concerning the respondents’ theory that Dr. Pineiro placed the claimant at MMI, the ALJ is not required to explicitly discuss defenses or theories she rejected Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232
(1966). Here, the ALJ expressly stated that “evidence contrary to the findings was rejected as not persuasive,” and “not every piece of evidence that would lead to a conflicting conclusion is included.” (Conclusions of Law 2). Under these circumstances, we presume the ALJ was not persuaded that Dr. Pineiro placed the claimant at MMI. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order).
The respondents’ further arguments notwithstanding, the ALJ’s determination is supported by substantial, albeit conflicting evidence in the record, and must be upheld on review. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Dr. Pineiro testified that the claimant was “back to baseline” on April 18, 2002. (Pineiro depo. p. 16). However, Dr. Pineiro later testified that he found nothing in his medical records to indicate he ever placed the claimant at MMI. (Pineiro depo. p. 22).
Furthermore, there is no evidence in the record that the respondents ever filed a final admission for permanent disability benefits which would trigger the DIME provisions. Based on this record, we cannot say the ALJ was compelled to find the claimant was placed at MMI, or that the claimant waived any dispute on the issue of MMI. Consequently, the ALJ did not err in failing to terminate temporary disability benefits as of April 4, 2002.
III.
Finally, the respondents contest the award of medical benefits. The respondents contend the ALJ’s order is legally insufficient because the ALJ did not specify what medical benefits are to be paid. We agree and remand for additional findings.
The respondents are liable for emergency and “authorized” medical treatment which is reasonably necessary to cure or relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2002; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). “Authorization” refers to the physician’s legal authority to treat, and is distinct from the issue of whether treatment is “reasonable and necessary.” Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993).
At the commencement of the hearing, the claimant’s attorney requested an order requiring the respondents to provide “reasonable and necessary medical services.” (Tr. 7). The respondents’ attorney argued that the respondents are not liable for the March 2002 cervical surgery because it was not authorized and was not necessitated by the December 17 industrial accident. (Tr. p. 10). Furthermore, the respondents’ attorney asked the claimant during cross-examination whether he requested authorization for the March 2002 surgery, and the claimant’s attorney did not object to this line of questioning. (Tr. pp. 39, 40). Consequently, we reject the claimant’s contention the respondents waived any argument on the relatedness or authorization of medical treatment. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
The ALJ determined the claimant is entitled to medical benefits “which are reasonable, necessary and related to the industrial injury.” (Conclusions of Law 8). However, the ALJ did not resolve the issues of whether the disputed treatment was “authorized” and reasonably necessary to treat the December 17 injury. Under these circumstances, the ALJ’s findings are insufficient to permit appellate review of the respondents’ challenge to the award of medical benefits.
On remand, the ALJ shall determine whether the disputed treatment is authorized. The ALJ shall also determine whether the disputed treatment is reasonable and necessary to cure or relieve the effects of the December 17 injury. Based on these findings, the ALJ shall enter a new order concerning the respondents’ liability for medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 2002, is affirmed insofar as it awards temporary disability benefits.
IT IS FURTHER ORDERED that the ALJ’s award of medical benefits is set aside and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 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 April 29, 2003 to the following parties:
Kevin Briggs, 525 City Park Ave., Ft. Collins, CO 80521
Employer Source, LLC, 4812 S. College Ave., Ft. Collins, CO 80525
Willard Wright Plumbing Heating, 1556 Riverside Ave., Ft. Collins, CO 80524
Heather Bartlett, Liberty Insurance Corporation, P. O. Box 3539, Englewood, CO 80155-3539
Craig Stirn, Esq., 343 W. Drake Rd., #105, Ft. Collins, CO 80526 (For Claimant)
Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Hurtado