W.C. No. 4-119-693Industrial Claim Appeals Office.
March 25, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which denied his request for additional temporary disability benefits and medical benefits. We affirm.
This case concerns a compensable back injury the claimant sustained in November 1991. Following two surgeries, the treating physician, Dr. Sabin, placed the claimant at maximum medical improvement (MMI) on April 18, 1994. The respondents ultimately admitted liability for medical impairment benefits, and the claimant continued to receive medical treatment for the ongoing effects of the injury. The claimant objected to the respondents’ admission, but apparently no further proceedings ensued.
On November 11, 1996, the claimant sustained another injury to his back while employed by a company known as Norgren. The claimant’s treating physician for that injury was Dr. Smith. On February 12, 1997, Dr. Smith opined the claimant had reached MMI from the aggravation of his preexisting back condition, and had “returned to his baseline level of function.”
On February 3, 1997, just prior to Dr. Smith’s report, the claimant was examined by Dr. Sabin. Dr. Sabin opined that the claimant should be off work, and prescribed additional therapies including a recreation center membership.
On May 9, 1997, Dr. Sabin issued a report concerning the cause of the claimant’s disability and need for additional treatment. Dr. Sabin opined that “80% of the patient’s need for treatment at the present time has been due to the 11/11/96 injury and 20% related to preexisting situations.” Dr. Sabin went on to state that, if it had not been for the November 1996 injury, the claimant probably would not have needed additional treatment or been taken off work.
The claimant then sought a hearing seeking temporary total disability, commencing February 3, in connection with the 1991 injury. The claimant also sought an order requiring the respondents to pay for the medical treatment prescribed by Dr. Sabin in February 1997.
However, relying on Dr. Sabin’s May 9 report, the ALJ found that the claimant failed to sustain his burden of proof to establish that the requested medical treatment and disability was attributable to the November 26, 1991 injury. Instead, the ALJ found that the need for treatment and disability was causally connected to the November 1996 injury, which constituted “an efficient intervening event.”
I.
On review, the claimant contends that the ALJ exceeded his jurisdiction by resolving the causation issue. Citing Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the claimant asserts that the respondents should have obtained an independent medical examination (IME) to challenge the findings of MMI by Dr. Sabin and Dr. Smith. We are not persuaded.
It is true that, under the provision currently codified at §8-42-107(8)(b)(I), C.R.S. 1997, it is the responsibility of an “authorized treating physician” to determine when the claimant reaches MMI. Further, an ALJ may not alter an authorized treating physician’s determination of MMI unless the parties obtain an IME See § 8-42-107(8)(b)(III), C.R.S. 1997.
In Story v. Industrial Claim Appeals Office, supra, the court held that where an authorized treating physician placed the claimant at MMI, the claimant could not request a change of physician for purposes of proving the need for additional treatment to improve her condition. The court held that the request for a change of physician constituted a “constructive challenge” to the opinion of the treating physician that the claimant had reached MMI. Consequently, the court stated the following:
“Because no IME was conducted or submitted prior to the hearing as required by § 8-42-107(8)(b), to the extent claimant’s request to change physicians was for purposes of obtaining treatment to further cure her injury, to reach MMI, or to obtain reinstatement of temporary total disability benefits, the ALJ exceeded her jurisdiction and authority in granting the request.” 910 P.2d at 82.
However, we have previously concluded that the Story
rationale does not apply where the claim for additional temporary disability benefits and medical treatment is predicated on the theory that the claimant’s condition has worsened since the treating physician found MMI. In those situations, we have reasoned that the claim for additional benefits does not constitute an attack on the treating physician’s determination of MMI at the time it was pronounced, but constitutes an assertion that the claimant’s condition has worsened and is no longer stable. Because there is no “constructive challenge” to the treating physician’s determination of MMI, the absence of an IME does not preclude the ALJ from considering whether the claimant’s condition has worsened so as to warrant additional benefits. See El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993); Watkins v. Monfort, Inc., W.C. No. 4-219-467
(March 17, 1998); Patla v. Bethesda Care Center, W.C. No. 4-150-170 (July 20, 1995).
Here, claimant’s counsel represented to the ALJ that the claimant was not disputing Dr. Sabin’s determination that the claimant reached MMI on April 18, 1994. Instead, claimant’s counsel advised the ALJ that the claimant would prove his condition had worsened so as to warrant additional treatment and temporary disability benefits. (Tr. pp. 7-8).
Under these circumstances, the respondents were not required to obtain an IME on the MMI issue prior to disputing whether claimant’s “worsened condition” was causally connected to the 1991 injury. Neither the respondents nor the claimant was contesting that the claimant’s condition stabilized in 1994. Moreover, Dr. Sabin’s finding of MMI did not address, nor could it have, the question of the cause of a subsequent worsened condition.
Neither were the respondents required to obtain an IME to contest Dr. Smith’s opinion that the claimant reached MMI in the Norgren case. As the respondents argue, Dr. Smith is not an authorized physician in this case concerning the 1991 injury. Thus, her opinion has no binding effect under the statute. Moreover, the respondents were not a “party” to the Norgren claim, and therefore had no duty to “dispute” Dr. Smith’s opinion prior to contesting the causation in this case. Section 8-42-107(8)(b)(II) (an IME is required if a “party” disputes MMI determination by “authorized treating physician”).
II.
The claimant next contends that the ALJ erred in failing to award additional medical benefits and temporary disability benefits because Dr. Sabin stated that at least a portion of the claimant’s need for treatment is attributable to the 1991 injury. The claimant relies on case law indicating that an industrial injury need not be the sole cause of a temporary wage loss in order to justify an award of temporary disability benefits. Eg. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209
(Colo.App. 1996). We find no error.
The claimant was required to establish that his disability and need for treatment is causally connected to the 1991 injury See City of Colorado Springs v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1893, November 13, 1997); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). It is true that, if an industrial injury leaves the body in a weakened condition, and that weakened condition is the cause of additional injury, the further injury is a compensable consequence of the industrial injury because it flows “proximately and naturally therefrom.” Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, additional benefits need not be provided merely because a subsequent accident might or would not have happened had the employee retained all of his or her former physical powers. Compensation is not payable where disability is the result of an efficient intervening cause. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934).
The question of whether disability and need for treatment is related to an industrial injury is one of fact for determination by the ALJ. City of Durango v. Dunagan, supra. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ may believe all, part, or none of the testimony of a witness Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, the ALJ has determined that the claimant failed to establish that his disability and need for treatment was related to the 1991 injury rather than the intervening injury occurring in November 1996. This finding is amply supported by Dr. Sabin’s May 9 report which contains the doctor’s opinion that the claimant would not have been disabled or needed additional treatment but for the 1996 injury. Thus, there is ample evidence of an efficient intervening event which supports the ALJ’s order. The mere fact that the ALJ might have interpreted the evidence and report differently affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
It follows that the case law cited by the claimant is not pertinent. Here, the ALJ determined that the claimant sustained an intervening injury which is the effective cause of his wage loss and need for treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 23, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is 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 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. 1997.
Copies of this decision were mailed March 25, 1998 to the following parties:
Salvador D. Baca, 2225 W. Hillside Ave., #20, Englewood, CO 80110
Western Trade Bindery, Inc., 2011 S. Platter River Dr., Denver, CO 80223-3852
Cynthia Spitz, Mid Century Insurance Co., P.O. Box 378230, Denver, CO 80237
Timothy Quinn, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
By: ________________________________