W.C. No. 4-292-687Industrial Claim Appeals Office.
June 24, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which reopened the claim and required them to pay additional temporary total disability benefits. We affirm.
The ALJ’s pertinent findings may be summarized as follows. On March 25, 1996, the claimant suffered admitted injuries to her cervical and lumbar spine. She was treated for back injuries, paresthesia in the upper and lower extremities, and occipital headaches. On October 31, 1996, Dr. Kindt performed a bilateral hemilaminectomy and discectomy at L5-S1. In October 1997, the claimant returned to Dr. Kindt with complaints of low back and bilateral leg pain, neck pain, and right arm numbness. MRI studies were consistent with post-operative findings at L5-S1. The MRI also showed a small disc protrusion at L4-5 and a possible ruptured annulus at L4-5. Dr. Kindt did not recommend additional surgery.
Dr. Rowlan placed the claimant at maximum medical improvement (MMI) on June 13, 1997, with ten percent whole person impairment. On December 3, 1997, Dr. Kleen performed a Division-sponsored independent medical examination (IME). At the time of the IME, the claimant complained of severe and constant lumbar pain bilaterally as a deep ache, combined with a stabbing sensation. The claimant also described sharp pain and numbness radiating into the left lower extremity to the foot. The claimant reported that the pain was exacerbated by walking, sitting, standing, coughing, sneezing, raking, sweeping, fatigue, intercourse, dampness and cold. Dr. Kleen rated the claimant’s permanent impairment as 43 percent of the whole person, and in an order dated May 5, 1998, ALJ Erickson ordered the respondents to pay medical impairment benefits in accordance with Dr. Kleen’s rating.
On August 25, 1998, the claimant filed a Petition to Reopen on grounds of a worsened condition. The claimant testified that her symptoms are worse than they were at the time of Dr. Kleen’s examination. The claimant also testified that she has trouble straightening up after sitting in a car, that her gait leans to the left and that she experiences daily sharp pains down her left coccyx area to the bottom of her foot. As a result, the claimant stated that her functioning has declined.
In June 1998, the claimant sought treatment from Dr. Gordon, who ordered a repeat MRI and a discogram. The tests revealed disc degeneration at L4-5, with a central disc protrusion encroaching on the epidural space at L4-5, L5-S1. Dr. Gordon recommended further surgery.
Crediting the claimant’s testimony, the ALJ found that the claimant sustained her burden to prove that her physical condition from the industrial injury has worsened to the point that she is no longer at MMI. The ALJ also determined that the diagnostic tests ordered by Dr. Gordon confirm the worsening. Therefore, the ALJ reopened the claim. The ALJ further determined the claimant has been physically unable to perform her usual occupation since June 26, 1998. Consequently, the ALJ ordered the respondents to reinstate temporary total disability benefits effective June 26, 1998.
I.
On review, the respondents contend the ALJ erred in reopening the claim. In support, the respondents contend that the claimant’s worsened condition is no different than her complaints at the time of the IME. The respondents also contend that the reports of Dr. Gordon and Dr. Wikoff do not support the finding of worsened condition. We perceive no error.
The determination of whether to reopen a claim is discretionary with the ALJ. Section 8-43-303(1), C.R.S. (1996 Cum. Supp.)[ amended in 1997]; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may not disturb the ALJ’s determination in the absence of fraud or an abuse of discretion Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on appeal of an alleged abuse of discretion is whether the ALJ’s determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Where the claimant seeks to reopen the claim on the grounds of a change of condition, the claimant is not required to prove that she has a “new”condition, but only a worsening of the effects of the industrial injury sufficient to warrant additional benefits. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). The question of whether the claimant presented sufficient proof of a worsened condition is one of fact for resolution for the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
In determining whether the ALJ’s findings of fact are supported by the evidence, we must defer to the ALJ’s credibility determinations. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, medical evidence is neither required nor dispositive of whether the claimant has suffered a worsened condition. In fact, the claimant’s testimony may alone be sufficient to establish the requisite proof. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical evidence is presented, it is the ALJ’s province to determine the probative weight of that evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant testified that the pain in her foot is different than it was at the time of the IME and that her headaches are different because they “now don’t go away.” (Dicamillo depo. pp. 13, 14). She also stated that her worsened condition requires stronger medication. (Dicamillo depo. p. 5). This testimony constitutes substantial evidence in support of the ALJ’s finding that the claimant established a worsened condition.
Contrary to the respondents’ contention, Dr. Gordon’s medical reports also support the ALJ’s finding that the claimant sustained her burden of proof to reopen the claim. Dr. Gordon opined that the discogram revealed concordant pain at L4-5, L5-S1, and that the MRI showed an internal disc disruption at L4-5 and 5-1. Dr. Gordon also opined that additional surgery is reasonable and necessary to treat the claimant’s condition. The ALJ reasonably inferred from Dr. Gordon’s reports that the claimant’s symptoms are attributable to a progression of the lumbar disc injury, and that the claimant is no longer at MMI. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it).
We recognize Dr. Gordon’s opinions that the claimant is suffering from “Chiari I type malformation,” and that this condition accounts for most of the claimant’s symptoms. (Gordon June 26, 1998). However, the ALJ was free to credit all, part or none of Dr. Gordon’s opinions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). The ALJ did not make any specific findings of fact concerning Dr. Gordon’s diagnosis of “Chiari I type malformation. Consequently, we presume the ALJ was unpersuaded by this portion of Dr. Gordon’s opinion. See Cooper v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999).
Similarly, there is no indication that the ALJ relied on Dr. Wikoff’s medical reports. Cooper v. Industrial Claim Appeals Office, supra. Consequently, we need not address the respondents’ contention that Dr. Wikoff’s reports do not support the ALJ’s order.
II.
The respondents also contend the ALJ erred in ordering them to pay additional temporary total disability benefits. In support, the respondents rely on the claimant’s testimony that she believed she has been unable to work since the original injury. Again, we disagree with the respondents’ argument.
To receive temporary disability benefits, the claimant must prove a causal connection between the industrial injury and the temporary loss of wages. Section 8-42-103 C.R.S. 1998; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). As argued by the respondents, a worsening of a condition after MMI does not entitle the claimant to additional temporary total disability benefits “unless the worsened condition caused an additional temporary loss of wages.” City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), cert. denied, 97SC964, May 11, 1998 (Ballinger). Ballinger involved a claimant who suffered a compensable back injury. The back injury precluded the claimant from performing his regular employment, and therefore, the claimant was awarded temporary total disability benefits. Four months after reaching MMI, the claimant suffered a shoulder injury while receiving treatment for the back injury. At the time of the shoulder injury, the claimant was medically restricted from performing his regular work as a result of the back injury. However, no additional medical restrictions were imposed on account of the shoulder injury.
The Ballinger court concluded that the claimant was not entitled to further temporary disability benefits following the shoulder injury because the shoulder injury “caused no greater impact upon the claimant’s temporary work capacity than he originally sustained as a result of the injury to his back.” (Emphasis in original). Therefore, the court concluded as a matter of law that the claimant failed to prove an entitlement to further temporary disability benefits.
However, in Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997), the court held that there is no statutory requirement for a claimant to present medical evidence of work restrictions in the form of an opinion from the treating physician as a prerequisite to proving her entitlement to temporary disability benefits. We have extended the Lymburn principle to a situation where the claimant sought to reopen his claim due to a worsened condition. See Tuttrow v. Gosney Sons, Inc., W.C. No. 3-102-245
(October 24, 1997), aff’d. on other grounds, Gosney Sons, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1948, May 28, 1998). We adhere to our conclusions in Tuttrow.
Here, although the claimant stated she believed she has been unable to work since the original injury, the claimant also testified that notwithstanding her belief, she looked for work after Dr. Rowlan released her to return to regular employment in deference to Dr. Rowlan’s opinion. (Dicamillo depo. p. 18-19). This testimony is susceptible of conflicting inferences, and the ALJ expressly resolved the conflicts in the claimant’s favor. Moreover, the record indicates that Dr. Rowlan released the claimant to return to work without restrictions at the time of MMI. (Kleen report August 11, 1997). However, the claimant stated that due to her worsened condition she didn’t think she could hold down a job because her pain continues to increase, she suffers from depression, she is unable to sit very long, and she cannot bend or lean over. (Dicamillo depo. p. 20). This ALJ could and implicitly did infer from this testimony that the claimant’s worsened condition has caused a greater impact on her work capacity than existed at the time of MMI. Consequently, the ALJ did not err in awarding additional temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 5, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed June 24, 1999 to the following parties:
Rose Dicamillo, HC-70, Box 252, Antlers, OK 72543
Joyce Humiston-Berger, NHA, The Valley Inn Nursing Home, 211 3rd Ave., Mancos, CO 81321
Business Insurance Company, Beatrice Calvert, Superior National Insurance Group, 2000 S. Colorado Blvd., #11500, Denver, CO 80222
Elizabeth E. Salkind, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
William A. Richardson, Esq., 400 Sussex Bldg., 1430 Larimer Square, Denver, CO 80202 (For Respondents)
BY: le