W.C. Nos. 4-309-595, 4-329-311Industrial Claim Appeals Office.
June 29, 1998
FINAL ORDER
Staffing Solutions (Staffing) and its insurer, CNA Insurance (collectively the CNA respondents), and McDonald’s and its insurer, Pacific Indemnity, (collectively the Pacific Indemnity respondents) have petitioned separately for review of an order of Administrative Law Judge Erickson (ALJ) dated November 6, 1997, which required them to pay temporary disability and medical benefits. We modify the award of temporary partial disability benefits and as modified, affirm.
In an order dated February 26, 1997, ALJ Stuber found that the claimant sustained an occupational disease to her upper extremities on May 15, 1996, arising out of and in the course of her employment for Staffing. As result of the injury, the claimant was restricted to modified employment. On August 26, 1996, Dr. Brodie placed the claimant at maximum medical improvement (MMI) with no permanent impairment, but imposed permanent work restrictions. The claimant’s employment at Staffing was terminated on August 26, 1996.
Between September 18, 1996 and September 30, 1996, the claimant worked as a substitute day care worker at O.U.R. Child Care Center (O.U.R.). In December 1996, the claimant began part-time employment at McDonald’s. The claimant held concurrent employment at O.U.R. from December 23, 1996 through March 17, 1997.
On February 19, 1997, while working at McDonald’s, the claimant suffered a twisting injury to her left wrist. Dr. King diagnosed a left wrist sprain, and referred the claimant to Dr. Fitzgibbons, who imposed additional lifting restrictions. On March 19, 1997, the claimant attempted suicide. As a result, the claimant was medically restricted from returning to work and began receiving psychological treatment.
In June 1997, Dr. Berk performed a Division-sponsored independent medical examination (IME) under the provisions of §8-42-107(8)(b)(II), C.R.S. 1997. Dr. Berk disagreed with Dr. Brodie’s finding that the claimant reached MMI on August 26, 1996. Dr. Berk also opined the claimant has not reached MMI for either injury and recommended additional treatment.
The ALJ found that Dr. Berk’s opinions were not overcome by “clear and convincing evidence.” Therefore, the ALJ found that the claimant was “temporarily” disabled when she was discharged from the modified employment at Staffing and that the claimant was entitled to temporary disability benefits.
Crediting the opinions of Dr. Berk, the ALJ also found that 90 percent of the medical treatment provided by Dr. King and Dr. Fitzgibbons is reasonable and necessary to treat the occupational disease, and 10 percent is causally related to the February 1997 injury at McDonald’s. Therefore, the ALJ apportioned liability for this medical treatment between the respondents in the same ratio. However, the ALJ found that the claimant’s need for psychological treatment is solely related to the injury at McDonald’s. Therefore, the ALJ held the Pacific Indemnity respondents solely liable for the expenses incurred by the claimant for psychological treatment.
The ALJ issued a Summary Order dated September 18, 1997, which awarded temporary disability and medical benefits. On November 6, 1997, the ALJ issued Specific Findings of Fact, and Conclusions of Law. The November 6 order required the CNA respondents to pay temporary partial disability benefits from June 3, 1996 to March 28, 1997 (excluding July 15, 1996 through July 28, 1996) at the rate of $182.64 per week. The ALJ also awarded temporary total disability benefits from March 29, 1997 through April 9, 1997 and ongoing temporary total benefits commencing April 11, 1997. However, the ALJ apportioned 90 percent of the temporary total disability benefits to the occupational disease, and 10 percent to the injury at McDonald’s.
I.
The Pacific Indemnity respondents contend that the “overwhelming evidence” compels a conclusion that the claimant’s need for psychiatric treatment is causally related to the effects of the occupational disease and Dr. Brodie’s premature determination of MMI. Therefore, the Pacific Indemnity respondents contend the ALJ erroneously held them responsible for the claimant’s psychiatric treatment.
The question of whether the claimant’s need for a particular treatment is causally related to an occupational disease or an industrial accident is a factual determination for the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). We must uphold the ALJ’s determination if supported by substantial evidence in the record. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
In a report dated June 11, 1996, Dr. Aguilar diagnosed the claimant with “Adjustment Disorder” but did not recommend any treatment related to the occupational disease. However, in April 1997, Dr. Aguilar reevaluated the claimant and recommended psychological treatment. Further, the claimant stated that she felt depressed after the occupational disease, but that the depression got “deeper” after the February 1997 injury. (Tr. August 12, 1997 pp. 24, 25). The ALJ could reasonably infer from this evidence that the claimant did not require treatment for her psychological problems until after the February 1997 injury.
This inference is also consistent with other medical evidence in the record. On June 2, 1997, Dr. Miller associated the claimant’s depression to the more recent injury. On July 7, 1997, Dr. Hilton diagnosed the claimant with a major depressive disorder secondary to the left wrist injury. On March 19, 1997, Dr. King related the claimant’s suicidal condition to the symptoms from the February 1997 injury. (Tr. August 25, 1997, pp. 42, 43).
We may not substitute our judgment for that of the ALJ concerning the credibility of the medical experts or the sufficiency and probative value of their testimony. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Furthermore, the ALJ is the final arbiter of conflicts in the medical evidence Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Therefore, the fact the record contains medical evidence which, if credited, might support a contrary determination is immaterial on review. Campbell v. IBM Corp., 867 P.2d 77
(Colo.App. 1993).
The Pacific Indemnity respondents’ remaining arguments on this issue have been considered and are not persuasive, and therefore, we perceive no basis for disturbing the ALJ’s order which imposes liability on the Pacific Indemnity respondents for the claimant’s psychiatric treatment.
II.
As argued by the CNA respondents, the amount of temporary disability benefits awarded in the ALJ’s Summary Order is less than the amount of benefits awarded in the November 6 order. The CNA respondents contend that the ALJ lacked jurisdiction to enter specific findings of fact, and therefore, they argue the ALJ’s Summary Order governs the amount of temporary disability benefits due the claimant. We disagree.
Section 8-43-215, C.R.S. 1997, provides that:
“Any party dissatisfied with a summary order may request specific findings of fact and conclusions of law in writing within fifteen days after the date of the certificate of mailing of the summary order. Such request shall be a prerequisite to a petition to review under § 8-43-301 . . . .”
Here, the CNA respondents filed a timely request for specific findings of fact dated October 1, 1997. On October 13, 1997, the Pacific Indemnity respondents requested specific findings of fact “in the event” the CNA respondents’ request was withdrawn. On October 14, 1997, the CNA respondents withdrew their request for specific findings. The CNA respondents contend that since their request was withdrawn, and the request filed by the Pacific Indemnity respondents was untimely, there was no valid request before the ALJ when he entered specific findings on November 6.
However, the purpose of § 8-43-215 is to ensure that the ALJ’s order is sufficient to permit appellate review. This purpose is fulfilled once the ALJ enters specific findings of fact pursuant to a request from either party. Accordingly, we have previously concluded that § 8-43-215 is satisfied if at least one party timely requests specific findings. Jones v. Weld County, W.C. No. 4-76-234 (December 8, 1994); Hill v. Boulder Medical Center, W.C. No. 4-103-570 (June 8, 1994).
It follows that there was no need for the Pacific Indemnity respondents to request specific findings until they became aware of the possibility that the CNA respondents would be withdrawing their request. Under these circumstances, we conclude that the purpose of § 8-43-215 was fulfilled, and the ALJ had jurisdiction to enter specific findings of fact on November 6, 1997. Therefore, the November 6 award of temporary disability benefits, is the order on review.
III.
However, we agree with the CNA respondents contention that the ALJ miscalculated the temporary partial disability rate. Section 8-42-106(1), C.R.S. 1997, provides that the claimant shall receive temporary partial disability benefits equal to “sixty-six and two-thirds percent of the difference between the claimant’s average weekly wage at the time of the injury and the claimant’s average weekly wage during the continuance of the temporary partial disability.”
The ALJ’s findings of fact are inconsistent and do not support his determination of the claimant’s temporary partial disability rate. Moreover, we have considered the claimant’s arguments and they do not support a temporary partial disability award at the rate of $182.64 per week.
The ALJ found that the claimant earned an average of $122.64 per week from “modified duty” she performed between June 3, 1996 and March 28, 1997, a total of 299 days. (Finding of Fact 21; Conclusions of Law, ¶ 7). This equals $5238.48. However, the ALJ also found that between June 3, 1996 and March 28, 1997, the claimant earned a total of $5,212.93 from three different employments, (which over 299 days or 42.71 weeks, results in an average of 122.05 per week). (Finding of Fact 21).
The parties stipulated the claimant’s average weekly wage at Staffing was $304.65. Therefore, had the claimant not been disabled she would have earned $13,011.60 during this period ($304.65 x 42.71 weeks). See § 8-42-102(3), C.R.S. 1997 (concerning the ALJ’s discretion to determine the claimant’s average weekly wage). Therefore, the claimant suffered a wage loss of $7,798.67 which equals $182.60 per week and a temporary partial disability rate of $ 121.73. We modify the ALJ’s order accordingly.
The CNA respondents also contend the ALJ erred in ordering them to pay temporary total disability benefits. They contend that the claimant’s disability from February 19, 1997 through April 9, 1997, and since April 11, 1997 is attributable to the February 1997 injury at McDonald’s, which aggravated the claimant’s pre-existing occupational disease. Therefore, they contend the Pacific Indemnity respondents are solely liable for these temporary disability benefits. We perceive no error.
The ALJ found that the February 1997 injury was the result of a traumatic, industrial accident and not a worsening of the occupational disease. Therefore, the ALJ properly concluded that the claim is not subject to the provisions of § 8-43-304(1), C.R.S. 1997, and the Pacific Indemnity respondents are not automatically liable for the claimant’s temporary total disability.
Furthermore, where there is substantial evidence that a claimant’s temporary disability is attributable to more than one injury, the ALJ may apportion liability for temporary disability benefits. State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985); Watts v. Eben Ezer, W.C. No. 3-905-560 et. al (February 14, 1994); Price v. Colorado Dept. of Corrections, W.C. No. 3-965-037 et. al. (March 16, 1994).
Here, the ALJ found that the claimant’s temporary disability was the combined result of the two injuries. The ALJ’s determination that the occupational disease caused 90 percent of the claimant’s temporary total disability and the February 1997 injury caused 10 percent of the disability, is supported by Dr. Berk’s opinions. State Compensation Insurance Fund v. Industrial Commission, supra.
However, the CNA respondents contend that the ALJ erred by failing to include an apportionment of the claimant’s psychological problems, which are solely due to the February 1997 injury. Consequently, the CNA respondents contend the ALJ erred in failing to apportion more than 10 percent of the claimant’s disability benefits to the Pacific Indemnity respondents. We are not persuaded.
Dr. Berk was aware of the claimant’s psychological problems at the time he opined that 90 percent of the claimant’s condition is attributable to the occupational disease. By crediting Dr. Berk’s opinions, the ALJ inherently considered the extent to which the claimant’s psychological problems contributed to her temporary total disability, and was not persuaded that the overall effects of the 1997 injury caused more than 10 percent of the claimant’s total disability. We cannot say the record compels a different conclusion.
Lastly, the CNA respondents argue that insofar as they are responsible for temporary total disability benefits after February 19, 1997, the ALJ erred in ordering them to pay benefits at the rate of $182.79 per week. Again we disagree.
Insofar as the ALJ found that 90 percent of the claimant’s disability is attributable to the occupational disease, we perceive no error in his determination that 90 percent of the claimant’s temporary total disability rate must be based upon the claimant’s average weekly wage at the time she sustained the occupational disease. Because the claimant’s average weekly wage at the time of the occupational disease was $304.65, the claimant’s temporary total disability rate for that injury is $203.10 ($304.65 x .6667%) and 90 percent of that rate equals $182.79.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 1997, is modified to provide that the CNA respondents shall pay temporary partial disability benefits at the rate of $121.73 and as modified the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ Kathy E. Dean __________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 29, 1998 to the following parties:
Dolores Alcala, 2201 14th Ave., Bldg. 3, Apt. #304, Longmont, CO 80501
Laura Hickman, Staffing Solutions, Inc., P.O. Box 7250, Boulder, CO 80306
McDonald’s, Mark Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80203
Pacific Indemnity, Chubb Group, 6400 S. Fiddler’s Green Cr., #1600, Englewood, CO 80110
Bryan Elkins, CNA Risk Management, 600 N. Pearl St., 17th Flr, Dallas, TX 75201
Mark Dumm, Esq. Bernard Woessner, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For McDonald Respondents)
Elsa Martinez Tenreiro, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
Janice M. Greening, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202 (For the Staffing Respondents)
BY: _______________________