W.C. No. 4-101-814Industrial Claim Appeals Office.
October 23, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant temporary total disability benefits and determined that a 1992 slip and fall is causally connected to the 1991 industrial back injury. We affirm.
The ALJ found that the claimant sustained a compensable back injury in June 1991, and received authorized chiropractic treatment from Dr. Looney, D.C. On March 12, 1993, Dr. Looney issued a report stating that “MMI seems to be presently.” Dr. Looney also recommended continuing chiropractic treatment to mobilize the claimant’s back “if surgery is not going to take place.”
The ALJ also found that, in October 1991, the claimant was examined by Dr. Jenks at the respondents’ request. The ALJ concluded that Dr. Jenks was an independent medical examiner (IME) although Jenks provided treatment to the claimant. Dr. Jenks opined that the claimant reached maximum medical improvement (MMI) on July 10, 1992.
The respondents terminated the claimant’s temporary total disability benefits on March 12, 1993, as a result of Dr. Looney’s report. Thereafter, the claimant received frequent chiropractic treatments until May 1994. On May 20, 1994, the claimant was examined by Dr. Brown upon a referral from Dr. Barney, D.C. (Dr. Looney’s successor). Dr. Brown diagnosed facet syndrome, and ultimately performed surgery on June 9, 1994. The surgery was described as “facet joint rhizotomies at L3-4, L4-5, and L5-S1.” According to the claimant, the surgery substantially improved his condition.
Under these circumstances, the ALJ concluded that the claimant did not reach MMI on March 12, 1993, and was entitled to temporary total disability benefits from that date forward. In support of this determination, the ALJ noted that Dr. Jenks testified that the claimant probably would have benefited from facet rhizotomies in July 1992. The ALJ also cited Dr. Looney’s March 12, 1993 opinion that the claimant seemed to be at MMI provided no surgery was performed. Finally, the ALJ relied on the claimant’s testimony that his symptoms were not stable in March 1993.
The ALJ also found that a slip and fall, which the claimant experienced in December 1992, was causally connected to the industrial injury. Specifically, the ALJ determined that the slip and fall was caused by “balance problems” associated with the claimant’s leg and back pain.
I.
On review, the respondents’ first contention is that the ALJ denied them due process of law by determining that Dr. Jenks was an IME physician rather than an authorized treating physician. The respondents assert that “authorization” of Dr. Jenks was not an issue for the hearing, and that the ALJ’s consideration of the issue compromised their “right to rely on Dr. Jenks for pertinent medical information and his opinion on matters such as maximum medical improvement and permanent medical impairment.” We reject this argument.
It is certainly true that parties are entitled to notice concerning the issues to be considered so that they may present their own case and confront opposing evidence. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, parties may waive the sufficiency of notice by failing to object to consideration of an issue at the time of the hearing. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
We agree with the claimant that the respondents themselves advised the ALJ that the status of Dr. Jenks as an IME physician or an authorized treating physician was of significance to the case. At the commencement of the hearing counsel for the claimant told the ALJ that the “only evidence” of MMI came from Dr. Jenks and Dr. Kremer who were “independent medical examiners.” Counsel for the respondents then stated :
“Your honor, Dr. Jenks is not an IME, and neither is Dr. Kurica, who have both said that: “Mr. Cox is at maximum medical improvement.” (Tr. August 3, 1994, pp. 16-17).
In our view, this exchange between the attorneys indicated to the ALJ that the status of Dr. Jenks was significant in determining the date of MMI. Specifically, the respondents indicated to the ALJ that the opinion of Dr. Jenks, as a treating physician, tended to support their position on MMI, and that his opinion should be given great weight because he was a treating physician. Thus, we do not perceive how the respondents could have been surprised that the ALJ proceeded to determine whether or not Dr. Jenks was an IME physician.
In any event, the ALJ’s determination of the issue was, at worst, harmless error. It is certainly true that the ALJ rejected the opinion of Dr. Jenks concerning MMI. However, an examination of the ALJ’s findings of fact indicates that the ALJ recognized that Dr. Jenks provided substantial treatment to the claimant. The ALJ’s decision to reject the opinion of Dr. Jenks was not based upon his status as an IME physician or treating physician, but on the ALJ’s overall assessment of the medical evidence and the claimant’s testimony.
II.
The respondents next contend that the ALJ’s finding that the claimant was not at MMI between March 12, 1993 and May 20, 1994 is unsupported by the evidence, and incorrect as a matter of law. The respondents argue that the claimant’s treating physicians, including Dr. Jenks and Dr. Looney, did not recommend treatment between March 12, 1993 and May 1994. Thus, the respondents reason that the claimant’s condition was “stable” until Dr. Brown diagnosed the facet problem in May 1994. We disagree with this argument.
Under the applicable law, MMI exists when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve the condition. Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995) Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). The determination of MMI is a factual question for resolution by the ALJ. Gonzales v. Industrial Claim Appeals Office, supra.
Because the finding of MMI is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-41-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard, we are obligated to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Further, it is the sole prerogative of the ALJ to assess the probative value of the medical evidence. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ argument notwithstanding, the evidence permits conflicting inferences concerning whether or not the claimant was at MMI in March 1993. The ALJ was persuaded by the evidence that, following the alleged date of MMI, the claimant experienced recurrent symptoms. Further, the ALJ was influenced by the testimony of Dr. Jenks that the claimant’s condition could probably have been improved if facet surgery had been performed in 1992. Moreover, the report of Dr. Looney was ambiguous because he indicated his belief that the claimant might need surgery. Consequently, there is ample evidence that the claimant’s condition was not medically stable in March 1993.
It is certainly true that the evidence would permit contrary findings and conclusions. However, the ALJ resolved the conflicts against the respondents, and we decline their invitation to substitute our judgement for that of the ALJ. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992) (appellate court does not decide the facts and may not substitute its judgment for that of the fact-finder).
Neither are we persuaded by the respondents’ argument that adopting the ALJ’s position means that claimants will never reach MMI because they may always argue that, in the future, medical science will develop a new treatment to improve their condition. To the contrary, the ALJ found that, at the time the respondents alleged the claimant reached MMI, medical treatment was already available which could improve the claimant’s condition. However, that treatment was not offered to the claimant.
III.
The respondents’ final contention is that the record lacks substantial evidence to support the ALJ’s finding that the 1992 slip and fall was causally connected to the claimant’s industrial back injury. We disagree.
An employer is liable for all natural and proximate results of an industrial injury, even if they do not occur contemporaneously with the injury itself. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622
(1970). The question of whether a subsequent injury is the natural and probable result of an industrial injury is a question of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s order if supported by substantial evidence. Section 8-43-301(8).
Here, the record contains substantial evidence to support the ALJ’s finding of a causal relationship between the 1992 fall and the claimant’s injury. The claimant’s testimony, the functional capacities evaluation report indicating that the claimant had a balance problem, and Dr. Looney’s April 8, 1993 report all support the order.
The respondents assert that Dr. Looney’s report was not “competent.” However, the respondents never moved to strike the report as being irrelevant, and consequently, are in no position to make the argument on appeal. C.R.E. 103(a)(1). Because the report was properly before the ALJ, it was her prerogative to assess its weight and credibility. Rockwell International v. Turnbull, supra.
IT IS THEREFORE ORDERED that the ALJ’s order, dated December 6, 1994, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 23, 1995 to the following parties:
James Cox, 712 Widefield Dr., Security, CO 80911
Industrial Power Company, 1800 N. 63rd St., Thornton, CO 80221-2071
Crum Forster Insurance, % Industrial Indemnity, Attn: Dana Spohn, P. O. Box 8127, Boise, ID 83707
Michael S. Kocel, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For Claimant)
Margaret Keck, Esq., 1873 S. Bellaire St., #1400, Denver, CO 80222 (For Respondents)
By: ________________________