W.C. No. 4-471-863Industrial Claim Appeals Office.
March 12, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which reopened the claim and awarded temporary disability and medical benefits. We affirm.
In July 2000 the claimant suffered a compensable fall which caused pain in her neck, low back, left hip, left leg. The respondents referred the claimant to the Concentra Medical Center (Concentra) where the claimant was treated by Dr. Sung and Dr. Sparr.
The claimant ultimately underwent a Division-sponsored independent medical examination (DIME), and the claim was closed by the filing of an uncontested Final Admission of Liability (FAL), which listed the date of maximum medical improvement (MMI) as April 3, 2001. The FAL also admitted liability for medical impairment benefits based on the DIME physician’s rating and future medical treatment.
The ALJ found the claimant’s condition worsened between April 2001 and September 2001, and when the claimant contacted the respondent-insurer she was denied further treatment because her case was closed. Thereafter, the claimant sought treatment from Dr. Johnson who referred her to Dr. Kurica and Dr. Peters.
The ALJ also found the claimant suffered a sudden worsening of her condition on February 2, 2003, which required emergency medical treatment. However, the ALJ rejected the respondents’ contention that the claimant’s inability to work between February 3, 2003 and February 28, 2003 was caused by an intervening injury on February 2. Instead, the ALJ found the worsened condition on February 2 was a natural consequence of the industrial injury. Consequently, the ALJ reopened the claim and awarded temporary total disability benefits. The ALJ also determined the respondents impliedly authorized Dr. Johnson’s treatment of the worsened condition by failing to authorize additional treatment upon notice of the claimant’s worsened condition. Therefore, the ALJ determined that Dr. Johnson and his referrals are authorized treating physicians.
I.
On review the respondents contend the ALJ erred in finding they waived the right to select a treating physician for the worsened condition. We perceive no error.
Section 8-42-101(1), C.R.S. 2003, requires the employer to provide medical benefits which are reasonable and necessary to cure the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Under § 8-43-404(5)(a), C.R.S. 2003, the employer or insurer is afforded the right in the first instance to select a physician to treat the injury. The employer’s obligation to provide medical treatment terminates at MMI, except where the employee is entitled to ongoing treatment to prevent a deterioration of her condition. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
We do not dispute the respondents’ contention that they are entitled to deny liability for the claimant’s worsened condition pending the claimant’s presentation of sufficient proof to warrant reopening the claim. Nevertheless, when the respondents have notice of the claimant’s alleged worsened condition and request for additional medical treatment, the respondents must designate a physician to treat the worsened condition subject to their right to deny liability for particular treatment on grounds it is not reasonably necessary to treat the industrial injury. See Wright v. City and County of Denver,
W.C. No. 4-172-291 (December 4, 1995) Dodge v. Burns International Security,
W.C. No. 3-935-989 (December 10, 1993), citing TRW-EPI v. Industrial Claim Appeals Office, (Colo.App. No. 91CA0575, December 19, 1991) (not selected for publication). Thus, we have held that where the respondents fail to authorize a physician upon notice the claimant seeks to reopen the claim the right to select the physician passes to the claimant and the physician chosen by the claimant becomes an authorized treating physician. See Wright v. City and County of Denver, supra; Mathis v. Hildebrand Care Center, W.C. No. 3-744-785, (November 30, 1987), aff’d., Hildebrand Care Center v. Mathis (Colo.App. No. 87CA1922, July 28, 1988) (not selected for publication). We adhere to our prior conclusions.
The respondents’ FAL included a limited admission for Grover-type medical benefits consisting of 4 physical therapy sessions, 1 facet joint injection, a vibrator unit, theracane, and interferential unit, hot pack for low back pain and a home exercise program. (Respondents Hearing Exhibit 1B p. 4). Because the FAL only admitted liability for maintenance treatment, we reject the respondents contention that the record compels a finding that the FAL designated Concentra to treat the worsened condition.
In any case, the claimant testified that after the worsened condition, she tried to get an appointment at Concentra but was refused. She also stated she contacted the respondent-insurer and requested additional treatment and was denied additional treatment on grounds the claim was closed. (Tr. pp. 18-19). Therefore, the record supports the ALJ’s finding that respondents failed to designate a physician to treat the claimant’s worsened condition and consequently the right of selection then passed to the claimant who selected Dr. Johnson as the authorized treating physician. Moreover, because the respondents failed to tender any provider to treat the worsened condition, this claim is not governed by the statutory procedure for a “change of physician.”
II.
The respondents also renew their contention that the claimant’s wage loss after February 2, 2003 was the result of an intervening injury. The ALJ was not persuaded and we perceive no basis to disturb his determination.
An insurer is liable for a claimant’s disability which flows proximately and naturally from an industrial injury. Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, the claimant is not required to prove that the industrial injury is the “sole” cause of her wage loss to recover temporary disability benefits. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Neither must the claimant prove that the injury is the “immediate” cause of the wage loss, but only that it is a “proximate” cause of the wage loss. Benefits are only precluded when the industrial disability plays “no part” in the wage loss. See Horton v. Industrial Claim Appeals Office, supra.
However, the insurer’s liability may be severed if the evidence shows that the claimant’s disability is attributable to an independent intervening injury or event. Roe v. Industrial Commission, 734 P.2d 138
(Colo.App. 1986). The existence of an “intervening event” is an affirmative defense to the respondents’ liability. Consequently, it was the respondents’ burden to prove that the claimant’s wage loss after February 2 was attributable to an intervening injury. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983). Whether the respondents sustained their burden to proof was a question of fact for resolution by the ALJ. City of Aurora v. Dortch, 799 P.2d 462
(Colo.App. 1990). Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
Substantial evidence is not limited to medical evidence. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). To the contrary the claimant’s testimony, if credited, may be sufficient to establish the requisite nexus between the industrial injury and the disability for which benefits are sought. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983). Consequently, we reject the respondents’ contention that the claimant is not a competent witness on the cause of disability after February 2. Further, the weight to be afforded the claimant’s testimony was a matter within the sole discretion of the ALJ and we may not substitute our judgement for that of the ALJ in this regard. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
The claimant testified that her condition worsened after April 2001 but improved temporarily with the physical therapy recommended by the DIME physician. She added that by July 2002 the pain had increased and was interfering with her ability to perform numerous activities of daily living and caused her to lose time from work. (Tr. pp. 16, 17, 20, 28). The claimant also stated that the sudden worsening of her condition on February 2 occurred when she was stepping up a step at home and felt a pop in her back. (Tr. p. 35).
The ALJ found the claimant had a preexisting degenerative condition which was asymptomatic prior to the industrial injury and that industrial injury caused the onset of back and leg pain. The ALJ also found that after the injury the claimant’s back pain increased with daily activities. Further, the ALJ recognized that the claimant’s sudden worsening on February 2 may have been followed a lifting incident or stepping up on a step at home. Nevertheless, the ALJ was not persuaded that these activities would have caused the sudden worsening, in the absence of the industrial injury because the claimant demonstrated a worsened condition long before February 2. The ALJ’s findings constitute plausible inferences from the claimant’s testimony. Therefore, we cannot say the ALJ erred in finding the respondents failed to prove an efficient intervening event which severed the causal connection between the industrial injury and the claimant’s temporary disability in February 2003.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 19, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
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. 2003. 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 order were mailed to the parties at the addresses shown below on March 12, 2004 by A. Hurtado.
Gladys Clark, 3527 Lenoso Terrace, Colorado Springs, CO 80910
Avalanche Industries, Inc., 425 E. Fillmore, Colorado Springs, CO 80907
Great States Insurance Company, c/o Claudia Renegar, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Thomas L. Kanan, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents)