W.C. Nos. 4-275-987, 4-455-718, 4-218-062, 4-468-808Industrial Claim Appeals Office.
February 7, 2002
ORDER
In these consolidated workers’ compensation cases, respondents Centennial School District R-1 (School District) and Great States Insurance Company (Great States) seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded the claimant temporary total disability benefits based on a worsened condition. Great States contends the evidence does not support the ALJ’s findings concerning the worsened condition, and that the worsening was caused by an injury of October 28, 1998. Further, Great States argues the ALJ erred in failing to apportion the award of temporary disability benefits based on prior injuries. Finally, Great States contends the ALJ improperly addressed the issue of medical benefits because the issue was not set for hearing. We affirm the order insofar as it determines the claimant is entitled to temporary disability benefits as a result of the October 28 injury. We remand the matter for additional proceedings concerning the issue of apportionment. Finally, we dismiss the petition to review without prejudice insofar as it addresses the issue of medical benefits.
The claimant was employed by the School District commencing in 1990. The claimant was a custodian and school bus driver. The School District was insured by respondent Pinnacol through June 30, 1997, but on July 1, 1997, Great States became the School District’s insurer.
Insofar as pertinent, the ALJ found the claimant sustained a back injury in 1987, prior to beginning his job with the School District. The claimant also sustained non-industrial back injuries on July 1, 1993, and July 18, 1993. Following the 1993 injuries, the claimant was diagnosed with a herniated disc at L5-S1 and a bulging disc at L4-5. Surgery was recommended, presumably to repair the L5-S1 disc, but declined by the claimant. (Tr. 93; Finding of Fact 10). Following these injuries, the claimant returned to work on October 4, 1993.
On November 15, 1995, while the School District was insured by Pinnacol, the claimant sustained an admitted industrial back injury when a table fell on him. The claimant’s treating physician diagnosed a herniated disc at L5-S1, and stated “surgery is a consideration.” (Report of Dr. McMillan, the summer 7, 1995). However, the claimant again declined surgery and returned to his regular duties with the School District. The claimant reached maximum medical improvement (MMI) in May 1997, and Pinnacol filed a final admission of liability dated June 2, 1997. The claimant did not object to the final admission. Thereafter, the claimant continued to experience low back pain and left leg pain which waxed and waned.
On October 28, 1998, the claimant slipped and fell at work while attempting to cross a culvert. The ALJ found this injury “aggravated” the claimant’s “pre-existing back condition.” (Finding of Fact 12). The claimant testified that after the slip and fall, he experienced a significant increase in back pain, and he was required to seek the assistance of co-workers when performing some of his duties. However, the claimant continued working for the School District.
On September 22, 1999, one of the claimant’s physicians, Dr. Spencer, placed the claimant at MMI for the October 1998 injury. In so doing, Dr. Spencer noted the claimant was suffering a herniated disc at L5-S1 “that tend [sic] to be worsening,” and the claimant probably had “some permanent muscular innervation damage.” Dr. Spencer also stated the claimant “so far is refusing any surgical approach.” The claimant then continued working until March 20, 2000, when the School District discharged him. The ALJ found the discharge was a “direct result of [the claimant’s] work restrictions.” (Findings of Fact 1 and 12).
The claimant filed an application for hearing seeking temporary total disability benefits commencing March 22, 2000, but did not list the issue of medical benefits on the application for hearing. At the hearing, the claimant testified his back and left leg pain has continued to worsen and he is now willing to consider surgery as a form of treatment to relieve the symptoms. (Tr. pp. 64, 75).
Insofar as pertinent, the ALJ found the claimant is no longer at MMI for the October 28, 1988 injury, and that his condition has worsened since he was placed at MMI on September 22, 1999. Specifically, the ALJ was persuaded by the claimant’s testimony that “his condition has changed significantly enough since September 22, 1999 that he is now willing to undergo surgery.” The ALJ then awarded temporary disability benefits commencing December 27, 2000, the date of her order.
The ALJ also rejected Great States’ request to apportion the award of temporary disability benefits between the claimant’s “other injuries and pre-existing degenerative disc disease.” The ALJ stated that apportionment is inappropriate because permanent disability benefits have not been requested, and because “the argument made by Great States is more in nature of a dispute over causation.” The ALJ reasoned that the existence of the prior injuries and degenerative disc disease did not “affect compensability of the October 28, 1998 injury.”
Finally, the ALJ concluded that after the worsening of condition the claimant “did suffer a compensable injury for which medical benefits are due.” (Conclusion of Law 7). Further, the ALJ ordered Great States to provide the claimant “reasonably related and necessary medical benefits.” However, Great States was not ordered to pay any specific medical benefits.
I.
On review, Great States argues the ALJ’s finding that the claimant was no longer at MMI for the October 1988 back injury is not supported by substantial evidence. The principal contention is the record does not support the ALJ’s conclusion that the claimant’s worsened condition and potential need for surgery are causally related to the October 1998 injury, rather than one or more of the claimant’s preexisting conditions or injuries. In support of this argument, Great States cites the testimony of Dr. Lambden, who stated the claimant’s L5-S1 disc herniation was first diagnosed in 1993, and the MRI conducted in April 2000 shows an “improvement” in the herniation. Great States also asserts the ALJ erred in relying on the claimant’s testimony concerning the worsened condition, rather than the “objective medical evidence.” We find no error.
As Great States argues, the claimant was required to prove the alleged worsening of condition and consequent disability were caused by the October 1998 industrial injury. Section 8-41-301(1)(c), C.R.S. 2001 Wal-Mart Stores, Inc., v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). However, to the extent the evidence supports a finding the October 1998 injury aggravated or accelerated the claimant’s preexisting condition so as to produce the temporary disability, the claimant is entitled to compensation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Further, proof of causation is not limited to medical evidence. Rather, circumstantial evidence in the form of lay testimony may be sufficient to permit an inference of causation Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
Ultimately, the determination of whether the claimant proved a causal connection between the industrial injury and disability is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Because the issue is factual we must uphold the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001; Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. To the extent expert medical opinion was presented on the issue of causation, it was for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Contrary to the argument of Great States, the record contains substantial evidence from which the ALJ could infer the claimant’s worsened condition was caused, at least in part, by the October 1998 injury. The ALJ did not deny the claimant had preexisting back problems, but found they were aggravated by the 1998 injury. This conclusion is supported by evidence the claimant was able to perform his regular duties prior to October 1998, but thereafter, his condition steadily deteriorated until the School District discharged him in March 2000. The claimant also testified that after he was placed at MMI in September 1999, his condition deteriorated sufficiently that he was willing to consider surgery as a remedy.
The medical evidence certainly did not compel the ALJ to reject the claimant’s testimony. Indeed, when the claimant was placed at MMI on September 22, 1999, the treating physician’s notes indicate a restriction of no lifting in excess of 10 pounds. By March 13, 2000, a restriction against “prolonged driving” was added. Although Dr. Lambden was unwilling to draw an inference of causation under the facts of this case, Dr. Odom opined the claimant’s “on-the-job injuries have caused his disc degeneration, his osteoarthritis and degenerative scoliosis to increase secondary to the nature of his work.” It may be inferred from Dr. Odom’s opinion that the claimant’s “on-the-job injuries” include the October 28, 1998 injury. Thus, there was conflicting expert medical evidence and the ALJ was not required to credit the evidence cited by Great States.
Great States specifically challenges Finding of Fact 8, where the ALJ found Dr. Spencer placed the claimant at MMI on September 22, 1999, because the claimant “did not wish to proceed with the surgery recommended by the authorized treating physician.” According to Great States, this finding is unsupported because Dr. Spencer’s September 22 note does not show that MMI was conditioned on the claimant’s willingness to undergo surgery, nor does the note show the proposed surgery was related to the October 1998 injury. Great States also asserts this finding confuses Dr. Spencer’s report with a prior report of another physician.
However, Finding of Fact 8 constitutes a plausible interpretation of Dr. Spencer’s September 22, 1999 office note. In this regard, it has been held that the claimant’s willingness to undergo particular forms of treatment may affect a determination of whether the claimant is at MMI. This is true because the “stability” of the claimant’s condition may depend on the claimant’s willingness to undergo treatment which offers a reasonable prospect for improving the condition. See § 8-40-201(11.5), C.R.S. 2001; Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080
(Colo.App. 1990); Sadaghiani v. Impressive Cleaners Laundry, W.C. No. 4-133-911 (April 18, 1997), aff’d. Sadaghiani v. Impressive Cleaners Laundry, (Colo.App. No. 97CA0820, November 13, 1997) (not selected for publication).
Here, Dr. Spencer’s September 22 report must be read in context of all of his medical records. On October 30, 1998, he expressly noted the claimant sustained an injury on October 28 when he slipped and fell at work. In the same report, Dr. Spencer noted the claimant had preexisting back problems. Consequently, when the claimant was placed at MMI in September 1999, the ALJ could reasonably infer Dr. Spencer had determined the claimant reached MMI for the October 28 aggravation of the preexisting condition. Similarly, the ALJ could plausibly interpret the September 22 report as “conditioning” MMI on the claimant’s decision not to undergo surgery. Dr. Spencer expressly noted the claimant was refusing a surgical approach, and stated the claimant still retained “the option” of looking into surgery. A reasonable reading of these statements is that Dr. Spencer believed surgery, or at least further consideration of surgery, offered a reasonable prospect for improving the claimant’s condition, but the claimant was unwilling to pursue that option. Thus, Dr. Spencer placed the claimant at MMI. Cf. Reynolds v. Industrial Claim Appeals Office, supra. It follows that we disagree with the argument that the ALJ “confused” Dr. Spencer’s report with a previous report issued by another physician.
We also reject Great States’ argument that the ALJ misapplied the burden of proof because the claimant’s desire to undergo surgery does not demonstrate his subsequent wage loss was caused by the October 1998 injury. It is true that when the claimant seeks additional temporary disability benefits after having been placed at MMI, the claimant must prove additional restrictions which impair his earning capacity beyond that which existed on the original date of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). However, we do not understand the ALJ to have awarded temporary disability benefits based simply on the fact the claimant had decided to consider surgery. Instead, the ALJ found the School District discharged the claimant because of the imposition of restrictions. As noted, the claimant’s restrictions appear to have increased in March 2000, shortly before he was discharged. In April 2000, Dr. Finn opined the claimant was unable to work “in his usual and customary position” driving a bus. Thus, the ALJ reasonably inferred the worsening of the claimant’s condition after September 1999 resulted in restrictions which additionally impaired the claimant’s capacity to earn wages. It follows the ALJ did not misapply the burden of proof and properly awarded additional temporary disability benefits.
Finally, Great States’ argues the ALJ “erred in failing to make findings concerning whether claimant was employed after he stopped work at Centennial.” As support for this argument, Great States points to Dr. White’s May 10, 2000, office note which states, “apparently [the claimant] is involved in some sort of construction work.” If the claimant obtained wage earning employment subsequent to his termination by the School District, his entitlement to temporary disability benefits might have been reduced or ended.
However, an ALJ need not make findings of fact concerning evidence which she does not find to be dispositive of the issues involved Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Here, the May 10 note does not indicate the claimant was earning wages as an employee, but merely states the claim was “involved” in some type of construction activity. Neither is there any indication that the claimant was earning wages, and Great States does not identify any other evidence tending to establish the claimant was employed after being terminated by the School District. Under these circumstances, it is implicit the ALJ did not find the May 10 note to be of sufficient weight to influence the result, and we perceive no error in that determination.
II.
Great States next contends the ALJ erred in failing to apportion the temporary disability benefits based on the contribution of the claimant’s preexisting conditions and injuries. In support of this proposition, Great States points out that Dr. Finn opined the claimant’s “symptoms all started with his automobile accident in 1993, and were periodically exacerbated by work-related injuries.” (Report of Dr. Finn dated April 18, 2000). On May 17, 2000, Dr. Finn opined that only 20 percent of the claimant’s condition was attributable to the October 1998 injury. We remand for entry of a new order on this issue.
The ALJ’s order declining to apportion the claimant’s temporary disability benefits is expressly predicated on the finding that “permanent benefits have not been determined and are not being requested.” Thus, the ALJ apparently held that apportionment of temporary disability benefits is forbidden by the “full responsibility rule,” and no apportionment is proper unless it involves permanent disability benefits.
However, in State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985), and more recently i University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001), the Court of Appeals held that temporary total disability benefits may be apportioned between workers’ compensation insurers if two or more industrial injuries actively contribute to a worsening of condition and consequent disability. As stated in State Compensation Insurance Fund v. Industrial Commission, supra, “the full responsibility rule does not relieve an employer or its insurance carrier from all liability for injuries sustained by an employee because the employee is subsequently injured in another accident, and because the employee is not permanently and totally disabled.” 697 P.2d at 809.
We agree with Great States there is some evidence from which the ALJ could infer the claimant’s worsened condition, after being placed at MMI in September 1999, was caused at least in part by the 1995 industrial injury for which Pinnacol is liable. Of course, the ultimate determination of this issue is one of fact for resolution by the ALJ University Park Care Center v. Industrial Claim Appeals Office, supra. We merely hold the ALJ’s reliance on the full responsibility rule and the fact that permanent disability benefits were not at issue, leads us to conclude the ALJ misapplied the law by failing to consider evidence which might justify apportionment of the temporary disability benefits.
Pinnacol’s contention notwithstanding, we do not understand the ALJ’s statement that Great States’ argument “is more in the nature of a dispute over causation” as solving the problem. While apportionment of temporary disability based on preexisting nonindustrial conditions is not appropriate, apportionment may exist where two or more industrial injuries combine and contribute to a worsening of condition. In such cases, the factual question is whether the claimant’s worsened condition was caused solely by the industrial aggravation of a preexisting condition, or by the active contributions of multiple industrial injuries. This issue is obviously one of causation.
III.
Great States next contends it was denied due process of law because the ALJ’s order purports to award medical benefits, but the issue of medical benefits was not before the ALJ. Because we conclude this portion of the ALJ’s order is not currently subject to review, we dismiss the petition to review without prejudice to the extent it addresses medical benefits.
Pursuant to § 8-43-301(2), C.R.S. 2001, a party “dissatisfied with an order” may file a petition to review any order which requires any party to pay a benefit or penalty, or denies the claimant any benefit or penalty. Orders which do not award or deny benefits or penalties are interlocutory and not subject to immediate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). Similarly, an order which determines liability without resolving the amount of benefits or penalties to be paid is not considered final and reviewable. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). Finally, an order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). In light of these principles, we have frequently held that orders which determine liability and award “reasonable and necessary medical” expenses without awarding specific medical benefits are not final and reviewable. Tooley v. Johnson and Sons Trucking, W.C. No. 4-376-713 (January 28, 2000) Tilton v. ABC. Turf Care, W.C. No. 3-105-542 (August 18, 1994).
Here, although the ALJ’s order concludes the claimant suffered a “compensable injury for which medical benefits are due,” and purports to award “reasonably related and necessary medical benefits,” no specific benefits were awarded, nor does it appear that liability for specific medical expenses was at issue. Thus, this portion of the order is not yet final and reviewable, and Great States may yet be afforded the opportunity to dispute the reasonableness and necessity for specific treatments requested by the claimant, including the surgery, if any, to be performed on the claimant.
IT IS THEREFORE ORDERED the ALJ’s order dated December 27, 2000, is affirmed insofar as it determines the claimant experienced a worsened condition as a result of the injury on October 28, 1998, and is entitled to temporary disability benefits because of that injury.
IT IS FURTHER ORDERED that the order is set aside insofar as it requires Great States to pay temporary total disability benefits without apportionment, and the matter is remanded for entry of a new order on this issue.
IT IS FURTHER ORDERED that Great States’ petition to review is dismissed without prejudice insofar as it addresses the issue of medical benefits.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________
David Cain
________________________________
Dona Halsey
NOTICE
An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office, which may be served by mail at 1515 Araphoe, Tower 3, Suite 350, Denver, CO 80202, and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 2001.
Copies of this decision were mailed February 7, 2002 to the following parties:
Larry Atkins, P. O. Box 7, Chama, CO 81126
Centennial School District R-1, P. O. Box 347, San Luis, CO 81152-0347
Great States Insurance Company, Linda Stithem, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Pinnacol Respondents)
Victor C. Devereaux, Esq., 400 Vega St., P. O. Box 40, San Luis, CO 81152 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Great States Respondents).
Lisa Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy