W.C. No. 4-407-217Industrial Claim Appeals Office.
July 31, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded additional medical benefits, and determined the claimant’s average weekly wage (AWW). We affirm the award of medical benefits, and dismiss without prejudice the petition to review the ALJ’s determination of the AWW.
On January 21, 1998, the claimant suffered a left hip injury arising out of and in the course of her employment for Wal-Mart Stores, Inc., (Wal-Mart). Dr. Beach diagnosed a left hip strain and restricted the claimant from climbing ladders or stairs. On February 11, 1998, Dr. Beach placed the claimant at maximum medical improvement (MMI) with no permanent medical impairment. The respondents admitted liability for medical benefits and listed the AWW as $307.35. In April 1998, the claimant sought additional treatment and was diagnosed with a left femoral neck stress fracture. In a report dated January 19, 1999, Dr. Messenbaugh opined that the stress fracture was “in all probability associated with” the work activities described by the claimant. The respondents denied liability for the stress fracture on grounds it was unrelated to the industrial injury.
On conflicting evidence the ALJ found the claimant proved that the industrial injury was the proximate cause of the femoral neck stress fracture. In so doing, the ALJ credited the claimant’s testimony and the medical opinions of Dr. Messenbaugh. Consequently, the ALJ awarded additional medical benefits to treat the stress fracture. The ALJ also increased the claimant’s AWW to include earnings of $276.05 per week from her concurrent employment as a real estate agent for Century 21.
I.
The respondents contend the ALJ erroneously awarded further medical benefits where the claimant failed to dispute Dr. Beach’s determination of MMI. The respondents also contend the ALJ’s order is insufficient to permit appellate review insofar as the ALJ failed to specify whether the additional medical treatment was necessary to attain MMI or maintain MMI as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We disagree.
Section 8-42-101(1), C.R.S. 1999, requires the employer to provide medical benefits reasonably necessary to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The employer’s obligation continues until the claimant reaches MMI which is defined as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 1999. Under § 8-42-107(8)(b), C.R.S. 1999 an authorized treating physician’s determination of MMI is conclusive unless the party disputing the MMI determination requests a Division-sponsored independent medical examination (IME) Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). However, the IME provisions in § 8-42-107(8)(b) are not applicable where the claim for additional benefits is based upon the allegation of a worsened condition. This is true because the question of whether the claimant previously reached MMI is separate and distinct from the issue of whether the claimant’s condition has remained stable or subsequently worsened. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Furthermore, the claimant may receive future medical benefits to maintain MMI or prevent a deterioration of her condition. Grover v. Industrial Commission, supra; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
The issue of Grover-type medical benefits after MMI was explicitly endorsed on the claimant’s Application for Hearing. Furthermore, at the commencement of the hearing claimant’s attorney stated that the claimant was asserting a claim for medical benefits to maintain her condition or, alternatively, was alleging a worsening of condition after MMI. Counsel added that the claimant was not seeking retroactive temporary disability benefits and was not challenging Dr. Beach’s determination of MMI. (See Tr. p. 13). Based on these statements the ALJ reasonably inferred that the claimant was proceeding on a request for medical benefits after MMI or a worsening of condition after MMI. (See
Tr. p. 21); CAN- USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Thus, the fact the claimant did not seek an IME to challenge Dr. Beach’s MMI determination is immaterial, because the claimant was not attacking Dr. Beach’s initial finding of MMI. See Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995).
Moreover, the ALJ’s findings of fact are sufficient to ascertain the basis of his award. Therefore, we decline to remand the matter for additional findings. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990). As we read the ALJ’s order, he found the claimant’s pain from the left hip injury persisted until April 2, 1998, when she sought additional treatment. (See Finding of Fact 6). Thus, the ALJ implicitly awarded Grover-type medical benefits.
Nevertheless, the respondents contend there is insufficient evidence to support the ALJ’s finding of a causal relationship between the industrial injury and the left femoral neck stress fracture. Specifically, the respondents contend Dr. Messenbaugh’s opinions lack evidentiary value because they were based upon an incomplete medical history. They also contend there is overwhelming evidence the stress fracture was the natural consequence of preexisting rickets and osteoarthritis.
The claimant has the burden to prove a causal relationship between the industrial injury and the medical treatment for which she sought benefits. Section 8-43-301, C.R.S. 199 ; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). However, the claimant is not required to prove causation by medical certainty. Rather it is sufficient if the claimant presents evidence of circumstances indicating with reasonable probability that the condition for which she seeks medical treatment resulted from or was precipitated by the industrial injury, so that the ALJ may infer a causal relationship between the injury and need for treatment. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968). Neither is the claimant the required to present medical evidence to prove the cause of the condition. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000
(Colo.App. 1986) (claimant’s testimony sufficient to prove employment caused heart attack).
It is the ALJ’s sole prerogative to assess the sufficiency and probative value of the evidence to determine whether the claimant has met her burden of proof. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996). Under this standard we are bound by the ALJ’s credibility determinations unless his findings are rebutted by such hard, certain evidence that as a matter of law the ALJ would err in crediting particular testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The claimant’s testimony, which the ALJ found credible, persuasive and consistent with the medical records contains substantial evidence to support the ALJ’s finding of a causal relationship between the industrial injury and the claimant’s need for additional medical treatment. The claimant testified that despite her preexisting rickets, she had no hip pain and was not treated for hip pain prior to the industrial injury. (Tr. pp. 30, 31). She also stated that her hip pain continued after Dr. Beach released her from treatment, but he refused to provide further treatment. (Tr. pp. 29, 30).
The evidence the respondents rely upon does not directly refute the claimant’s testimony concerning the progression of her left hip pain. Furthermore, it was for the ALJ to resolve inconsistencies in the claimant’s testimony. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). The ALJ resolved the alleged inconsistency between the claimant’s testimony and the lack of continuous complaints of left hip pain to her personal physician, by relying on evidence that Dr. Beach told the claimant that even though she had some hip pain at MMI her condition would improve over time. (Tr. p. 47; Finding of Fact 5). Therefore, we cannot say the ALJ erred in crediting the claimant’s testimony.
Furthermore, the ALJ recognized that Dr. Messenbaugh did not know the claimant had fallen on the ice in December 1997, when he opined that the claimant’s stress fracture was due to the industrial injury. However, the ALJ credited the claimant’s testimony that the fall did not initiate her hip pain. (See
Finding of Fact 4). Admittedly, the evidence could have been interpreted differently, however, we cannot say the record compelled a contrary result as argued by the respondents.
II.
Under § 8-43-301(2), C.R.S. 1999, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An order which determines liability without determining the amount of benefits, does not award or deny benefits as contemplated by this statute, and consequently, is not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986). Furthermore, orders may be final in part and interlocutory in part. Oxford Chemicals Inc., v. Richardson, supra.
The ALJ calculated the claimant’s average weekly wage. However, the ALJ did not award or deny any disability benefits based on this determination. In fact, no specific disability benefits were requested. (See Tr. pp 11-13). Furthermore, there is no admitted liability for temporary or permanent disability benefits. Under these circumstances, the ALJ’s determination of the AWW is interlocutory and not currently subject to review.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 14, 1999, is affirmed insofar as it awards medical benefits.
IT IS FURTHER ORDERED that the respondents’ petition to review the ALJ’s determination of average weekly wage is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 1999. 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 July 31, 2000
to the following parties:
Susan Anderson, 8483 Kalamath St., Federal Heights, CO 80221
Wal-Mart Stores, Inc., 9499 Sheridan Blvd., Westminster, CO 80030-6532
Insurance Company of the State of Pennsylvania, Karen Goad, Claims Adjuster, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy