W.C. No. 4-702-985.Industrial Claim Appeals Office.
March 23, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 8, 2008, that denied and dismissed his claims for permanent and temporary disability benefits and denied additional medical benefits after maximum medical impairment (MMI). We affirm.
The ALJ made the following pertinent findings of fact. On November 11, 2004, the claimant suffered an industrial injury to his low back when he was twisted by a drill and fell several feet off a pile of pallets. The claimant sought temporary total disability (TTD) benefits for two periods of disability. The first period began on February 17, 2005, the date the claimant underwent surgery, until he returned to work. The second period of claimed TTD was due to nonunion of his fusion surgery. The ALJ determined the claimant’s disability was caused by his unrelated surgery and nonunion from the surgery. The ALJ denied the claims for medical, disfigurement, temporary and permanent disability benefits.
On appeal, the claimant contends the ALJ misinterpreted the medical evidence and misapplied the relevant legal principles concerning preexisting conditions. We are not persuaded that the ALJ erred.
The claimant argues that the issue of whether the claimant’s symptoms following his November 11, 2004 industrial injury were solely attributable to his preexisting condition was presented to the ALJ at the first hearing held on this matter on July 17, 2007. The claimant contends this issue was resolved in favor of the claimant by the
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ALJ’s Summary Order dated July 24, 2007. However, as we read the Summary Order the ALJ only found that the claimant proved by a preponderance of the evidence that he suffered an injury on November 11, 2004 arising out of and in the course of employment, that he did not intentionally waive his right to workers’ compensation benefits and his claim was filed within the applicable two year statute of limitations. No benefits were requested at the time of the Summary Order nor were any benefits ordered. We do not read the Summary Order as resolving the critical issue involved in the order here under appeal of whether the claimant’s disability was caused by his surgery and nonunion from that surgery.
The claimant failed to raise his arguments pertaining to preclusion before ALJ Stuber, and it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). The claimant did not list issue preclusion in his application for hearing, raise it before the ALJ at the inception of the hearing or argue it in his position statement. In any event, the claimant’s arguments are unpersuasive.
To the extent that the claimant argues the Summary Order has some type of preclusive effect on the ALJ’s later determination in the order here under appeal we reject such a contention. The issues or claims in the first hearing were the occurrence of the incident, whether the claimant intentionally waived his right to benefits and whether the claim was time-barred. The issues in the second hearing were entitlements to various benefits and so there was no identity of issues or claims for relief. Therefore, the first order has no preclusive effect. Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795, 797 (Colo.App. 2006).
We also note that both issue preclusion and claim preclusion require finality of the first judgment. See Holnam, Inc. v. Indus. Claim Appeals Office, supra. Here, the first order did not require a party to pay benefits or a penalty or deny the claimant any benefit or penalty. Such orders are interlocutory and not final. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
The claimant next argues that the record does not support the conclusions that the claimant’s surgery was unrelated to his work injury and that the surgery was an intervening event. The claimant, citing H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990), argues if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. We of course agree with this general statement of the law but we note that these issues are questions of fact to be resolved by the ALJ. Bianghi v. Walmart W.C. No. 4-749-717(January 16, 2009).
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Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence, which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review under the substantial evidence standard is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d. 1182 (Colo.App. 1990).
Here, the ALJ made the following findings with record support. The claimant’s first documented low back pain was July 14, 2004 and he was treated at the Veteran’s Administration (VA) health care provider. Exhibit I at 107. On October 7, 2003, the claimant underwent a magnetic resonance image (MRI) on his lumbar spine, which showed transitional vertebral segment, lumbar/sacral junction with spinal stenosis at L4/5. Exhibit H at 57-58. The claimant was seen at the VA on October 20, 2003 with continued complaints of back pain and it was noted that surgery was the only treatment option to relieve his symptoms. Exhibit I at 99. The claimant was seen for neurologic follow up at the VA on January 22, 2004 for reported worsening low back pain. The claimant could walk for about 200 feet with antalgic gait and stooped posture. Exhibit I at 211-12. On April 7 2004, the claimant was seen at the VA and reported worsening low back pain, shortening gait distance and wished to proceed with decompression surgery in November 2004, but needed pre-surgery appointment to determine his overall operative risk. Exhibit I at 208-09. The claimant testified that he underwent a cardiac work-up and was not cleared for surgery. Tr. at 29. On August 3, 2004, the claimant was seen by his primary physician at the VA and moved into a ranch style home and planned to order a special bed. Exhibit I at 196. On November 11, 2004, the claimant suffered the industrial injury to his low back under review here.
In January 11, 2005, the claimant filed out a patient questionnaire and indicated that the onset of low back and lower extremity complaints occurred in April 2002. Exhibit D at 55. The claimant described the onset of pain as gradual. Exhibit D at 55. On January 13, 2005, the claimant filled out a patient history stating that he had not
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sustained a specific injury and believed his problem was due to being in the military. Exhibit E at 57.
The claimant underwent a posterior spine fusion and decompression at L4-L-5 on February 16, 2005 by Dr. Agarwala. Exhibit D at 46-48. Dr. Ogsbury opined that the claimant suffered no physiological change in his condition between 2003 and 2005 and did not suffer an aggravation of his preexisting condition due to the work injury. Exhibit B at 22-23. Dr. Ogsbury concluded that the claimant suffered no permanent impairment due to his November 11, 2004 work injury. Exhibit B at 23.
Dr. Leppard opined that he agreed with the opinions of Dr. Ogsbury that there was no evidence that the claimant’s work injury aggravated, exacerbated or accelerated his preexisting low back condition. Exhibit C at 24 Dr. Leppard agreed that the claimant’s pre-injury and post-injury diagnoses were identical and that the claimant’s permanent impairment did not result from the November 11, 2004 industrial accident. Exhibit C at 23-24.
The DIME physician in her original report opined that there was nothing that happened in the accident that caused the need for surgery and that the claimant’s 27 percent whole person impairment resulted in a 19 percent whole person permanent impairment rating for the work injury. Exhibit A at 4-5. The DIME physician expressed contradictory conclusions during her deposition but the ALJ determined that her ultimate determination was the claimant suffered no permanent impairment as a result of his work injury. Barrett Depo. at 25.
The ALJ found that the DIME physician ultimately determined that the claimant suffered no permanent impairment due to the work injury. Consequently, the claimant had a clear and convincing burden of proof to overcome the medical impairment rating and MMI determinations of the DIME physician. The ALJ found that the claimant failed to prove by clear and convincing evidence that the medical impairment determination was incorrect. The ALJ further determined that to the extent the claimant was challenging the MMI determination of the DIME physician he failed to prove by clear and convincing evidence that the MMI determination by the ALJ was incorrect. In our view, the opinion of the DIME physician, the opinions of Dr. Ogsbury and Dr. Leppard and the records from the VA hospital supply ample, substantial evidence to support the ALJ’s findings of fact and denial of the requested benefits.
The claimant argues that the respondents advanced the affirmative defense that the claimant’s February 2005 surgery was an “intervening event” that severed the causal connection between the claimant’s work injury of November 11, 2004 and his subsequent disability. The claimant argues that the ALJ erred in misapplying the law because at the
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time of the intervening event (surgery) the claimant was already totally disabled by the effects of his industrial injury and the claimant’s wage loss and disability were necessarily caused to at least some degree by the work injury. Therefore, the claimant contends that the surgery did not sever the causal connection between the industrial injury and the claimant’s disability. We are not persuaded that the ALJ misapplied the law.
We first note that although the claimant argues that at the time of the surgery he was already totally disabled by the effects of his industrial injury, the claim made here for temporary total disability benefits runs from February 17, 2005, which is the day after the surgery. At the inception of the hearing, the claimant requested temporary total disability from February 17, 2005. Tr. at 5. The ALJ specifically found that due to the surgery the claimant was unable to return to work after February 17, 2005. Under these circumstances, we are not persuaded that the ALJ was compelled to accept claimant’s factual premise that he was already totally disabled by the effects of his industrial injury at the time of the surgery.
More importantly, as we read the order the ALJ did not analyze the claim using the doctrine of intervening event. We acknowledge that the respondents did mention at the inception of the hearing that surgery was an intervening event. Tr. at 7. But in our view, this is not a case where the claimant’s entitlement to TTD benefits was determined by the ALJ to be terminated by the intervening event of surgery. Rather, the issue here was whether the claimant had demonstrated entitlement to TTD benefits because the injury caused a disability that caused the claimant to leave work.
In our opinion, the doctrine of intervening injury concerning the effect of a separate injury, which occurs while the claimant is receiving medical and disability benefits for a compensable injury, is not instructive in the present case. To the extent that the line of cases dealing with intervening injuries is at all relevant, we note that respondents are not liable for injuries which occur subsequent to a compensable injury, and are not a “natural result” of the compensable injury. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934). Conversely, respondents are liable for subsequent injuries which “flow proximately and naturally” from the compensable injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622
(1970). Whether or not a subsequent injury may be said to flow proximately and naturally from a compensable injury is a question of fact, and we must uphold the ALJ’s resolution of this issue if supported by substantial evidence. § 8-43-301(8); Standard Metals Corp. v. Ball, supra.
In our view, the ALJ used the proper analysis in deciding whether the claimant was entitled to TTD benefits. An award of TTD benefits is mandated by the Act if: (1)
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the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; and (3) the temporary disability is total and lasts for more than three regular working days’ duration. Section 8-42-103(1)(a), C.R.S. 2008; § 8-42-105(1), C.R.S. 2008; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term “disability” as it is used in workers’ compensation connotes two distinct elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by the claimant’s inability “to resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641
(Colo. 1999); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999).
In this case, the ALJ found that the claimant failed to establish entitlement to TTD because the claimant’s disability was caused by his unrelated surgery and nonunion from that surgery. It follows that his wage loss was not caused by any disability associated with the industrial injury. Delagreheim. V. Innovative Machining, Inc., W. C. No. 4-533-723 (May 04, 2006). As noted above we view the record as supplying substantial evidence to support this finding. Therefore, we have no basis upon which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 8, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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KENNETH D BENNETT, ELIZABETH, CO, (Claimant), PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer), CLAWSON
CLAWSON, LLP, Attn: MICHAEL CLAWSON, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RITSEMA LYON, PC, Attn: SEAN KNIGHT, ESQ., DENVER, CO, (For Respondents).
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