W.C. No. 4-136-519Industrial Claim Appeals Office.
June 23, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ Erickson) which denied her request for permanent total disability benefits. We affirm.
On April 13, 1992, the claimant suffered injuries to her right hip, right hand, left knee, left foot and head as a result of a slip and fall accident arising out of her employment with the respondent. The claimant reached maximum medical improvement (MMI) on June 1, 1993, with five percent medical impairment of the whole person. The claimant’s condition subsequently worsened.
In an order dated August 12, 1994, ALJ Felter found that the claimant suffered a closed head injury during the industrial accident, which caused her to develop disabling psychological problems. Therefore, ALJ Felter ordered the respondent to provide additional medical benefits and temporary disability benefits commencing December 3, 1993. In so doing, ALJ Felter gave the greatest weight to the opinions of Dr. Woodcock, Dr. Panteleo and Dr. Jacobson, and found the contrary opinions of Dr. Gross incredible. No appeal was taken from ALJ Felter’s order.
The claimant received temporary total disability benefits until March 4, 1996, when she reached MMI from the worsened condition. The claimant subsequently applied for a hearing on permanent total disability.
In June 1996, Dr. Krause performed a Division-sponsored independent medical examination (IME). Dr. Krause rated the claimant’s permanent psychological impairment as 60 percent of the whole person. However, Dr. Krause attributed all of the impairment to the claimant’s pre-existing history of physical and sexual abuse. Dr. Krause also opined that the industrial injury is not a significant factor in the claimant’s overall disability.
In a report dated September 10, 1996, Dr. Ginsburg noted the claimant’s extensive psychological problems which pre-dated the industrial injury. Dr. Ginsburg opined that the claimant did not present a significant cognitive disorder, that there was no objective evidence of neurological deficits, and that the claimant suffers from symptom magnification. Consequently, Dr. Ginsburg concluded that the claimant’s psychological condition is not the result of the industrial injury to any significant degree.
Similarly, Dr. Saker opined that the claimant did not suffer a post traumatic stress disorder and did not meet the criteria for that diagnosis. Dr. Saker also opined that the claimant’s alleged memory difficulties are exaggerated and that the claimant demonstrates “an extreme degree” of symptom magnification. Dr. Saker noted the claimant’s “significant” history of psychological problems including physical, emotional sexual abuse, and two suicide attempts. Consequently, Dr. Saker opined that the industrial injury is not a significant factor in the claimant’s permanent disability.
ALJ Erickson found that the claimant failed to sustain her burden to prove the industrial injury is a significant factor in her permanent total disability. In so doing, ALJ Erickson credited the opinions of Dr. Saker, Dr. Krause and Dr. Ginsburg, and rejected the contrary opinions of Dr. Laub and Dr. Panteleo. ALJ Erickson also credited the January 21, 1994 report of Dr. Gross, in which he found no objective neurological deficits, and diagnosed the claimant with symptom magnification. Therefore, ALJ Erickson denied the request for permanent total disability benefits.
On review, the claimant contends that the final order of ALJ Felter is the “law of the case” concerning the “cause” of her psychological disability. Accordingly, the claimant contends that ALJ Erickson erred in redetermining the compensable nature of her psychological problems. The claimant also contends that ALJ Erickson was bound by ALJ Felter’s credibility determinations. Therefore, the claimant argues that ALJ Erickson erred in crediting the opinions of Dr. Gross and the medical evidence which was based upon the opinions of Dr. Gross. We reject these arguments.
The “law of the case” doctrine is a discretionary rule which provides that prior relevant rulings made in the same case are generally to be followed. Verzuh v. Rouse, 660 P.2d 1301
(Colo.App. 1982). The only purpose of the rule is efficiency of disposition. Thus, the law of the case doctrine does not apply if the prior ruling results in error or is no longer sound because of changed conditions resulting in manifest injustice. People v. Roybal, 672 P.2d 1003 (Colo. 1983); Verzuh v. Rouse, supra.
Moreover, the law of the case applies to decisions of law and not findings of fact. Mining Equipment Inc., v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993). Therefore, ALJ Felter’s factual determinations concerning the cause of the claimant’s temporary disability were not binding on the ALJ Erickson. Similarly, ALJ Felter’s factual determinations concerning the credibility of the various medical experts were not binding on ALJ Erickson.
The issues adjudicated by ALJ Felter were temporary disability benefits and medical benefits prior to MMI. In contrast, ALJ Erickson was required to determine permanent disability and the claimant’s need for medical benefits after MMI. ALJ Erickson did not modify or disturb ALJ Felter’s conclusions that the claimant’s temporary disability and need for further medical treatment were causally related to the industrial injury. We also note that even though ALJ Erickson credited medical evidence which contradicts ALJ Felter’s finding that the claimant suffered a closed head injury, ALJ Erickson only considered the evidence relevant to the issues which were before him. (Tr. December 13, 1996, p. 49); 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). Therefore, ALJ Erickson did no redetermine issues which were resolved by ALJ Felter’s order Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (claim of condition since last order necessarily different from issue previously determined); Martin v. Public Service Company of Colorado, W.C. No. 4-005-640
(November 7, 1995).
The claimant also contends that because she received temporary total disability benefits up to the date of MMI, ALJ Erickson was compelled to find a direct causal connection between her permanent psychological disability and the industrial injury unless the respondent presented proof that the psychological disability was cured or was the result of an intervening injury. We disagree.
Permanent total disability is defined as the inability to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 1997. It is the claimant’s burden to prove an entitlement to permanent total disability benefits. Section 8-43-201, C.R.S. 1997; Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). To sustain her burden, the claimant must prove that the permanent effects of the industrial injury are a significant causative factor in her inability to earn any wages. Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986). Furthermore, the existence of temporary disability does not compel a conclusion that the claimant has permanent disability. Thus, we reject the claimant’s statement of the burden of proof.
In determining whether the claimant sustained her burden of proof, ALJ Erickson was necessarily required to determine the nature and extent of the claimant’s residual impairment from the industrial injury. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Based upon the opinions of Dr. Krause, Dr. Ginsburg and Dr. Saker, ALJ Erickson was not persuaded the claimant proved that her “permanent” disability was due to a psychological impairment resulting from the industrial injury. Furthermore, ALJ Erickson was persuaded by Dr. Ginsburg’s opinion that if the claimant suffered a closed head injury, it resolved. (Conclusion of Law 3).
The claimant is obviously dissatisfied with the ALJ’s resolution of the conflicts in the medical evidence. However, we may not substitute our judgment for that of the ALJ concerning the credibility or probative weight of the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). Further, the medical evidence the ALJ found persuasive contains substantial evidence to support his determination that the claimant failed to sustain her burden of proof. Therefore, ALJ Erickson’s determination must be upheld, and the existence of medical evidence, which if credited, might support a contrary result is immaterial. Section 8-43-301(8), C.R.S. 1997; Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The claimant’s remaining arguments have been considered and are unpersuasive. Notwithstanding the factual distinctions between this case and the circumstances in Seifried v. Industrial Commission, supra, ALJ Erickson found that the cases are similar in that the residual effects of the industrial injury are not a significant cause of the claimants’ permanent total disability. Therefore, we perceive no error in the ALJ’s application o Seifried.
Further, the 1994 observations of Frieda Horton corroborate Dr. Gross’s opinion that the claimant demonstrated a history of symptom magnification back to 1994. Therefore, we perceive no error in ALJ Erickson’s reliance on Ms. Horton’s testimony.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 9, 1998, 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 23, 1998 to the following parties:
Charla S. Cooper, Jean London, 1444 E. Girard Place, #213, Englewood, CO 80110
Cindy Hogan, Sunny Acres Villa, Inc., 2501 E. 104th Ave., Denver, CO 80233
Jeanne Beebe, St. Mary Corwin Employee Health, 1925 E. Orman, Ste. A-245, Pueblo, CO 81004
Susan D. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Susan K. Reeves, Esq., 111 S. Tejon, Ste. 700, Colorado Springs, CO 80903 (For the Respondent)
BY: _______________________