IN RE ARELLANO, W.C. No. 4-014-657 (7/23/96)


IN THE MATTER OF THE CLAIM OF JIMMIE DAVID ARELLANO, Claimant, v. JAMES J. GONZALES d/b/a TITAN SHIELD SECURITY, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 4-014-657Industrial Claim Appeals Office.
July 23, 1996

FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) insofar as the ALJ awarded temporary disability benefits commencing January 30, 1995. We affirm.

In 1990, the claimant suffered a compensable injury, which was treated by several physicians including Dr. Herrington. Following an examination on October 7, 1993, Dr. Herrington issued a report dated October 11, 1993, in which he stated that claimant reached maximum medical improvement (MMI) with permanent impairment of ten percent of the whole person. Thereafter, the respondents filed a Final Admission of Liability which terminated temporary disability benefits, and admitted liability for permanent partial disability benefits in accordance with Dr. Herrington’s impairment rating.

In January 1995, the claimant was examined by Dr. Rook, who reported that the claimant was not at MMI, and recommended further treatment. The claimant then requested an order granting a change of physician to Dr. Rook, and the reinstatement of temporary disability benefits commencing October 7, 1993.

The ALJ found that the claimant reached MMI on October 11, 1993. However, the ALJ determined that the claimant’s condition subsequently worsened to the point that the claimant was not at MMI as of January 30, 1995. Because the claimant was unemployed and medically restricted from performing his pre-injury employment, the ALJ ordered the respondents to reinstate temporary disability benefits commencing January 30, 1995.

The ALJ also determined that the claimant made a proper showing for a change of provider to Dr. Rook. Specifically, the ALJ stated that, “Dr. Rook testified that he would employ a specific treatment plan for Claimant consisting of physical therapy and drug therapy in order to reattain maximum medical improvement.” (Conclusions of Law #1).

On appeal, the claimant contends that the record does not support the ALJ’s finding that “Dr. Rook testified” that his treatment recommendations were necessary for the claimant to “reattain” MMI. Rather, the claimant contends that Dr. Rook was of the opinion that the claimant never attained MMI from the industrial injury. Therefore, the claimant argues that the ALJ should have reinstated temporary disability benefits effective October 7, 1993. We reject this argument.

ALJs are not held to a “crystalline standard” in expressing findings of fact and conclusions of law. Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). As we read the ALJ’s order, Conclusion of Law #1 is not a factual determination concerning Dr. Rook’s opinion regarding the date of MMI. Rather, this conclusion integrates the ALJ’s factual determinations that the claimant reached MMI on October 11, 1993, but was no longer at MMI as of January 30, 1995. Thus, the disputed portion of Conclusion of Law #1 is merely a reflection of the ALJ’s conclusion that, insofar as Dr. Rook recommended physical and drug therapy, that treatment is reasonable and necessary for the claimant to “reattain” MMI.

Further, even if were to accept the claimant’s construction of Conclusion of Law #1, we perceive no basis to interfere with the ALJ’s determination. Dr. Rook testified that the claimant was not at MMI as of January 30, 1995. However, Dr. Rook did not specifically testify concerning whether the claimant was at MMI prior to January 30. (Tr. pp. 30-49).

Moreover, it was the ALJ’s sole prerogative to determine the inferences to be drawn from conflicts in the record. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Consequently, to the extent that Dr. Rook’s testimony and report may arguably support an inference that the claimant did not attain MMI on October 11, 1993, we may not disturb the ALJ’s inference to the contrary. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995).

Here, the ALJ’s factual determinations concerning MMI were based upon the evidence the claimant did not seek medical treatment between October 1993 and late 1994, as well as Dr. Rook’s records which indicate that the claimant reported a worsening of his condition over the twelve months prior to January 1995. (Tr. pp. 18, 25). The ALJ was also persuaded by Dr. Herrington’s October 11 report which stated:

“I think [the claimant] has reached maximum medical improvement and doubt that further medical or surgical procedures or therapy will significantly alter his current mild symptoms and permanent limitation of lifting.”

Under these circumstances the ALJ’s finding that the claimant initially reached MMI on October 11 is supported by the record. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995) (MMI exists when `the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition’); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).

IT IS THEREFORE ORDERED that the contested portion of the ALJ’s order dated September 18, 1995, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Kathy E. Dean

NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).

Copies of this decision were mailed July 23, 1996 to the following parties:

Jimmie David Arellano, 1027 1/2 Palo Alto, Pueblo, CO 81006

James Gonzales, 803 W. 4th St., Ste. P, Pueblo, CO 81003-2305

Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)

Jon Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903 (For the Claimant)

BY: _______________________