W.C. Nos. 4-456-522, 4-592-957, 4-627-378, 4-627-379.Industrial Claim Appeals Office.
January 4, 2006.
ORDER
The claimant and the respondents, Trans-Colorado Concrete and General Casualty Company, both seek review of an order dated June 27, 2005, of Administrative Law Judge Jones (ALJ) that granted the claimant’s petition to reopen the claim against Trans-Colorado Concrete but denied temporary disability benefits. We set aside that portion of the order which denied temporary disability benefits and remand for further proceedings. We otherwise affirm the order.
The ALJ found that the claimant worked for Trans-Colorado Concrete from 1999 to September 2002. He subsequently worked for Miller Excavating from September 2002 through March 2003, for Native excavating from May 2003 through January 2004, and for Precision Excavating from January 24, 2004, to November 23, 2004.
The claimant sustained successive low back injuries during the course of his employment. He originally suffered an injury to his lower back on March 23, 2000, in an admitted accident while working for Trans-Colorado Concrete when he lifted a 70 lb. drum roller. The claimant was placed at maximum medical improvement (MMI) on September 20, 2000 and Dr. Bomberg, the claimant’s primary care provider, gave him a 15 percent whole person impairment rating. The claimant continued to work for Trans-Colorado Concrete and he continued to experience low back pain.
The claimant testified that his duties as a mechanic periodically caused back pain while working for his next employer, Miller Excavating. He sustained another admitted injury to his lower back on October 10, 2003 as a result of picking up a tire while employed with Native Excavating. The claimant reached MMI without permanent impairment on December 4, 2003, and the respondents filed a final admission of liability (FAL) based on Dr. William’s report. The claimant did not object to the FAL.
The claimant’s low back gradually worsened after performing repair work on a pickup in March of 2004 while working for a subsequent employer, Precision Excavating. The ALJ found that none of the medical records mentioned this incident and that the claimant did not tell his employer because he felt his problems related to his original injury with Trans-Colorado concrete.
The claimant was laid off by Precision Excavating on November 23, 2004 and he began to work for Alpine Taxi on December 10, 2003, as a taxi driver. The claimant continued in this employment until he was laid off from his job as a taxi driver on April 4, 2005.
The claimant testified that his condition since reaching MMI, for the injury occurring on March 23, 2000, while he was employed by Trans-Colorado Concrete, has worsened. The claimant testified that, in his opinion, his current back condition is related to the March 23, 2000, work-related injury.
In a report dated March 8, 2005, Dr. Janssen opined that the claimant’s current condition represents the natural progression of an extruded disc fragment as seen in the claimant’s MRI of May 9, 2000, and that there is no new anatomical problem relating to other employment.
Dr. Bomberg saw the claimant on several occasions after March 2004. Dr. Bomberg opined that the claimant had new pain in his lower back and recommended that the claimant reopen his claim and obtain another MRI evaluation, along with possible steroid injections.
Based on these findings, the ALJ determined that the claimant’s current condition was due to the natural progression of the March 2000 injury. Therefore she granted the claimant’s petition to reopen and found Trans-Colorado Concrete responsible for all reasonable and necessary medical benefits. The ALJ found that the claimant was responsible for his wage loss since he left his employment with Trans-Colorado concrete when he resigned his position because he did not like his manager. Accordingly the ALJ found that the claimant was not entitled to temporary disability benefits.
I.
Trans-Colorado Concrete and its insurer seek review, asserting that the ALJ erred in reopening the claimant’s earlier claim, and in failing to credit the overwhelming, substantial evidence in the case supporting their position that the claimant suffered a new injury in March 2004 while working for Precision Excavating. We disagree.
Generally, the authority to reopen a claim under §8-43-303(1), C.R.S. 2005, is discretionary with the ALJ. Thus, we may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Moreover, whether the claimant’s condition is due to the natural progression of the pre-existing condition or a new industrial accident is one of fact for resolution by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251
(Colo.App. 1999). We are bound by the ALJ’s factual determinations in this regard if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S. 2005 City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Trans-Colorado Concrete argues that there is little evidence that the claimant suffered leg pain following the injury to his back in March 2000 and that the great weight of evidence supports the proposition that the claimant first felt pain in his legs following the incident while working for Precision Excavating in March 2004. The claimant testified that he had no leg pain following his March 2000 injury. However, the ALJ relied on Dr. Siegel who saw the claimant on January 3, 2002 and indicated that after the injury at Trans-Colorado Concrete involving lifting a drum, he had developed low back and right leg pain. Dr. Siegel’s opinion constitutes substantial evidence supporting the ALJ’s factual findings.
Trans-Colorado Concrete further argues that the ALJ erred in relying on Dr. Janssen’s opinion that the claimant’s current condition represents the natural progression of an extruded disc fragment, evidenced in the claimant’s MRI of May 9, 2000, because Dr. Janssen’s opinion was based upon an incomplete history, which did not include the claimant’s injury at Precision Excavating. However, during Dr. Janssen’s deposition an account of the injury at Precision Excavating was given to him and he remained steadfast in his opinion that the claimant’s condition is the natural consequence of the March 23, 2000, injury at Trans-Colorado Concrete. Tr. (4/26/05) at 30. An expert’s reliance on an incomplete medical history merely goes to the weight that is given to it. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Trans-Colorado Concrete makes a similar argument regarding the opinion of Dr. Williams that the claimant’s condition is likely a natural progression of the original injury, again asserting that the doctor relied upon an incomplete medical history. However, after being provided with additional information regarding the claimant’s injury at Precision Excavating, Dr. Williams did not change his opinion about the cause of the claimant’s condition. Tr. (4/27/05) at 17.
Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, as previously noted, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
The respondent Trans-Colorado concrete next argues that the ALJ committed error by allowing post-hearing depositions. We disagree.
The ALJ is vested with broad discretion to determine the course of an evidentiary hearing. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). As previously noted, the standard on review of an alleged abuse of discretion is whether the ALJ’s ruling exceeds the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, supra Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Trans-Colorado Concrete did not object at the hearing to the taking of these depositions. Inasmuch as the respondent failed to raise this argument before the ALJ, we decline to address it on review. Apache Corp. v. Industrial Commission, 717 P.2d 1000
(Colo.App. 1986). In any case, the ALJ may grant a continuance or otherwise permit the taking of post-hearing evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988); Peterson v. Wal-Mart Stores, W.C. 4-310-904 (January 3, 2002). Under these circumstances, we perceive no basis on which to interfere with the ALJ’s conduct of the hearing.
II.
The claimant on review argues that the ALJ erred in finding the claimant was not entitled to an award of temporary disability benefits because he was responsible for termination of his employment at Trans-Colorado Concrete, despite the ALJ’s finding that the claimant’s condition worsened subsequent to the termination. We agree that the ALJ may have misapplied the law.
The ALJ found, and apparently it is undisputed, that the claimant was “responsible” for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2005, and §8-42-105(4), C.R.S. 2005 (collectively the termination statutes). Consequently, the ALJ denied the claim for temporary disability benefits. Under the termination statutes, a claimant who is responsible for a termination of regular or modified employment is not entitled to temporary disability benefits absent a worsening of condition which reestablishes the causal connection between the injury and the wage loss. See Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004). The concept of “responsibility” reintroduces into the Workers’ Compensation Act (the Act) the concept of “fault” as used in termination cases before the supreme court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Colorado Springs Disposal v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Thus, the fault determination depends on whether the claimant “performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination.” See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185
(Colo.App. 1985); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003) aff’d., Ellis v. Industrial Claim Appeals Office, Colo. App. No. 03CA1356, April 1, 2004 (not selected for publication). The determination of the fault issue is ordinarily one of fact for resolution by the ALJ Padilla v. Digital Equipment Corp., supra
However, although the claimant appears to concede that he was responsible for his termination from employment, it appears that the ALJ may have construed § 8-42-105(4) as a permanent bar to all temporary disability benefits where the claimant is responsible for the loss of employment. In Anderson v. Longmont Toyota Inc., however, the supreme court held that § 8-42-105(4) bars temporary disability wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss. The facts presented here are not significantly distinguishable from the circumstances in Anderson. Consequently, § 8-42-105(4) is not a permanent bar to temporary disability benefits when a claimant’s condition worsens.
As we stated in Martinez v. Denver Health, W.C. 4-527-415
(August 8, 2005), we understand Anderson to stand for the proposition that even if a claimant is “responsible” for a termination from employment, the right to temporary disability benefits may again be established if the claimant shows a worsened condition which causes a subsequent wage loss. 102 P.3d at 326. The Anderson court determined that this reading of the termination statutes is consistent with the legislative history of the phrase “resulting wage loss,” and with the General Assembly’s failure to alter the provisions of § 8-43-303, C.R.S. 2005, which permits reopening based on a worsened condition. See also, Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054
(Colo.App. 2005). Although the Anderson decision does not specifically address what evidence is necessary to prove that a worsened condition is the cause of a wage loss, the facts in the two cases are illustrative. In the Longmont Toyota case, the claimant’s worsened condition resulted in additional restrictions which prevented him from performing the modified mechanical job which he obtained after the terminating the pre-injury employment. In the Sorter Construction case the post-termination surgery caused the claimant to be restricted from all employment. Similarly, in Grisbaum v. Industrial Claim Appeals Office, the claimant was injured but was able to continue the pre-injury employment until he resigned. After the resignation the claimant’s condition deteriorated and he was completely restricted from any work in May 2002. Temporary disability benefits were ordered commencing in May 2002.
We further noted in Martinez that the principle that appears to guide each of these cases is that a wage loss is “caused by a worsened condition” if the worsening results in physical limitations or restrictions which did not exist at the time of the termination, and these limitations or restrictions cause a limitation on the claimant’s temporary earning capacity which did not exist when the claimant caused the termination. In this regard, we should not be understood to be stating that the restrictions must be established by medical or other expert testimony from an authorized treating physician. We do not understand Anderson to have changed the legal principle that proof of a worsening need not be made with medical testimony E.g., Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). On remand the ALJ shall enter factual findings concerning whether the claimant’s wage loss resulted from his worsened condition or from his voluntary resignation from Trans-Colorado Concrete.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 2005, is set aside to the extent it denied temporary disability benefits and the matter is remanded for entry of new factual findings and a new order on this issue consistent with the views expressed herein.
IT IS THEREFORE FURTHER ORDERED that the ALJ’s order dated June 27, 2005, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Mervin C. Davis, Milner, CO, Les Sharp, Trans-Colorado Concrete, Steamboat Springs, CO, Native Excavating, Inc., Steamboat Springs, CO, Judy Strnad, Miller Excavating, Steamboat Springs, CO, Precision Excavating, Inc., Hayden, CO, General Casualty Company of Wisconsin, c/o Marti Meyers, Crawford and Company, Fort Collins, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Ruth Ann Kuehl, Continental Casualty Company, Denver, CO, W.M. Busch, Jr., Esq., Loveland, CO, (For Claimant).
Eric C. Blomfelt, Esq., Windsor, CO, (For Respondents Trans-Colorado Concrete and General Casualty Company).
Michele Stark Carey, Esq., Denver, CO, (For Respondents Native Excavating, Inc. and Pinnacol Assurance).
Thomas L. Kanan, Esq. and Shelley A. Becker, Esq., Denver, CO, (For Respondents Miller Excavating and Pinnacol Assurance).
Clay Thornton, Esq. and Robert H. Coate, Esq., Denver, CO, (For Respondents Precision Excavating, Inc. and Continental Casualty Company).