W.C. No. 3-106-845Industrial Claim Appeals Office.
October 25, 2000
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent total disability benefits. The respondent challenges the sufficiency of the evidence to support several findings of fact underlying the ALJ’s conclusion that the claimant’s industrial injuries are the cause of her permanent total disability. We find no error.
The claimant sustained industrial injuries in September 1992 when she slipped and fell at work. The claimant testified she injured both upper extremities and experienced a whiplash effect. The ALJ found that claimant’s injuries necessitated four surgeries. These included a subacromial decompression of the right shoulder in August 1993, a two-level cervical fusion in August 1994, a right carpal tunnel release in October 1996, and an ulnar nerve decompression of the left elbow in September 1998.
On January 27, 1997, one of the claimant’s treating physicians, Dr. Fisher, opined the claimant had a combined 29 percent whole person impairment attributable to the cervical injury and injuries to the right upper extremity (shoulder and carpal tunnel). In August 1995 Dr. Fisher issued permanent restrictions prohibiting the claimant from lifting more than ten pounds, and prohibiting overhead reaching, stooping, bending, and repetitive use of the hands. The claimant was intermittently employed as a waitress until September 1998, albeit in a restricted capacity and with limited hours. However, the claimant testified that she ceased work in September 1998 because of pain in her arms, shoulder, and left hand, and has not been able to return to work. (Tr. pp. 27, 33).
On December 14, 1998, Dr. Fisher opined the claimant “is essentially disabled from any sort of employment.” On April 22, 1999, Dr. Fisher diagnosed the claimant with a “failed cervical spine surgery” and “bilateral ulnar nerve compression neuropathy,” and stated the claimant “is essentially disabled on a permanent basis from any sort of work activity for which she equipped [sic] by education or training.” On December 10, 1999, Dr. Fisher issued a report stating the claimant’s “present disability includes a significant pulmonary problem secondary to chronic obstructive pulmonary disease.” He further stated that the “impairment concerning her work related injury of 9/13/92 has not significantly changed since the written evaluation of 1/27/97.”
At the hearing, the claimant introduced the report and testimony of vocational expert Brennan. Brennan opined the claimant, in view of her work experience, limited education, and residual physical capacity, is unable to earn wages in her local labor market. Further, Brennan testified that he reached this conclusion based on the industrial injury and without regard to the diagnosis of chronic obstructive pulmonary disease. (Tr. pp. 67-68; Brennan report, October 4, 1999).
Implicitly crediting the claimant’s testimony and the opinions of Dr. Fisher and Mr. Brennan, the ALJ found the claimant is unable to earn wages in the same or other employment. The ALJ further determined that the “vocationally significant conditions that restrict the claimant’s access to the labor market are related to her September 13, 1992 injury.” Therefore, the ALJ determined the industrial injury is a “significant causative factor” in the claim for permanent total disability benefits. The ALJ’s order awarded permanent total disability benefits commencing December 14, 1998.
I.
On review, the respondent contends the evidence does not support the ALJ’s finding that the claimant underwent four surgeries as a result of the 1992 industrial injury. The respondent takes particular issue with the finding that the September 1998 ulnar nerve decompression surgery was related to the injury because there is evidence the respondent did not “authorize” the surgery, nor did the claimant or her physician bill the respondent for the surgery. We find no error.
In order for medical treatment to be considered a compensable consequence of an industrial injury, the claimant must prove the need for treatment was directly and proximately caused by the injury. Section 8-41-301(1)(c), C.R.S. 2000; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant proved the requisite causal connection is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
The substantial evidence standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Although causation need not be proven by expert medical evidence, where such evidence is presented it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We do not understand the respondent to be challenging the finding that the first three surgeries are causally connected to the industrial injuries of September 1992. Indeed, the respondent’s brief concedes that the respondent admitted liability for the permanent medical impairment which Dr. Fisher assessed following these surgeries. In any event, the claimant’s testimony, together with the 29 percent impairment rating assessed by Dr. Fisher, fully support the ALJ’s finding that the first three surgeries are causally connected to 1992 industrial injury Cf. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Neither do we perceive any error in the ALJ’s finding that the 1998 surgery was causally related to be industrial injury. The claimant testified that she injured her left elbow when she fell in 1992, and subsequently had “problems” with it. (Tr. p 28). This testimony is corroborated by the report of Dr. Sillix, dated October 21, 1992, which states the claimant “incurred bruising to the left side, left elbow, and left hip” when she fell. Dr. Fisher’s report of April 22, 1999, indicates the claimant suffers from bilateral ulnar neuropathy attributable to a “9-13-92 work related fall.” (Claimant’s Exhibits, Fisher records p. 54).
It may be that the claimant failed to procure “authorization” for the 1998 surgery, and that neither the claimant nor Dr. Fisher billed the respondent for the surgery. However, this merely constitutes some evidence that the surgery was unrelated to the industrial injury. The ALJ was not required to infer that failure to procure authorization or bill for the surgery compels the conclusion that the surgery is unrelated to the industrial injury. To the contrary, substantial evidence supports the ALJ’s determination that all surgeries are causally related to the 1992 industrial injury.
II.
The respondent next contends the ALJ erred in determining that the 1992 industrial injury was the direct and proximate cause of the permanent total disability. In support of this argument, the respondent relies on evidence the claimant was involved in an automobile accident in 1994, and was diagnosed with chronic obstructive pulmonary disease (COPD) in 1999. The respondent also asserts the ALJ erred in relying on Mr. Brennan’s expert testimony because it failed to account for the intervening disabilities caused by the accident and the COPD. We find no error.
In order to prove entitlement to permanent total disability benefits, a claimant is required to prove that the industrial injury is a “significant” cause, but not necessarily the sole cause, of the permanent total disability. Thus, a claimant is required to prove a direct causal relationship between the industrial injury and the permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). However, if the permanent total disability results not from the industrial injury, but from an efficient intervening cause, the claimant is not entitled to permanent total disability benefits. See Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo.App. 1984) (although claimant’s industrial hand injury aggravated preexisting diabetes, the claimant’s blindness, and hence permanent total disability, was not compensable because it resulted from independent progression of the diabetic condition). Determination of whether the claimant proved the requisite causal relationship, or whether there was an intervening cause of the permanent total disability, are issues of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s order if supported by substantial evidence Seifried v. Industrial Commission, supra.
The respondent’s assertion notwithstanding, the record supports the ALJ’s finding that the permanent total disability was caused by the 1992 industrial injury, and not by some intervening injury or disease. Here, in December 1998 and April 1999, Dr. Fisher opined the claimant was incapable of working because of the failed cervical surgery and bilateral ulnar nerve compression. This opinion was rendered prior to the July 1999 diagnosis of COPD. Thus, the ALJ could plausibly infer that the effects of the 1992 injury rendered the claimant unable to earn any wages, and hence permanently and totally disabled, prior to the time the claimant incurred additional disability caused by COPD. Under this interpretation, there is substantial evidence that the 1992 injury was a direct and proximate cause of the permanent total disability, and that the subsequent diagnosis of COPD did not independently intervene to render the claimant permanently and totally disabled. Cf. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996) (where claimant was already temporarily totally disabled by the industrial injury at the time of the alleged “intervening event,” the subsequent wage loss was necessarily caused to some degree by the industrial injury).
Further, the ALJ was not required to infer that the 1994 automobile accident was an intervening cause of the claimant’s permanent total disability. Indeed, the claimant testified the automobile accident did not cause any injuries. (Tr. p. 34). Dr. Fisher, who examined the claimant on September 22, 1994, stated the claimant was “mainly just frightened,” and could be reassured “that nothing disastrous has happened.” On August 3, 1995, Dr. Fisher stated the claimant’s “impairment is secondary to the work injury in question and has not been influenced long-term by her automobile accident.” Thus, the evidence fully supports the ALJ’s implicit rejection of the 1994 accident as a significant intervening cause of the permanent total disability.
It follows that we reject the respondent’s assertion that Mr. Brennan’s opinion on permanent total disability is not credible because it is based on disability caused by intervening injuries. In fact, Brennan explicitly testified that he did not consider COPD when rendering his opinion that the industrial injury caused permanent total disability. The ALJ credited this testimony, and we may not interfere with this determination.
Similarly, Dr. Fisher’s December 10, 1999, report does not mandate a different result. Dr. Fisher opined in December 1998 and April 1999 that the effects of the 1992 injury were sufficient to render the claimant permanently unable to work, and the December 10 report indicates that nothing had changed in this regard. The December 10 report merely notes the additional diagnosis of COPD and consequent increase in the extent of overall disability. However, this increase in disability attributable to COPD is irrelevant since the claimant was previously rendered permanently and totally disabled by the industrial injury itself.
III.
Finally, we reject the respondent’s argument that the claimant was required to prove a “worsening of condition” subsequent to being placed at maximum medical improvement in January 1997. The ALJ found, on substantial evidence, that the permanent effects of the industrial injury have rendered the claimant unable to earn any wages. Section 8-40-201(16.5)(a), C.R.S. 2000. The fact the claimant performed some work subsequent to January 1997 did not require the ALJ to deny the claim for permanent total disability absent proof of a worsened condition. Viewed in its entirety, the evidence credited by the ALJ establishes that the physical effects of the industrial injury, taken in the context of the claimant’s “human factors” including limited education, prove employment is not reasonably available to the claimant in her local labor market. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The claimant’s failed attempts to maintain employment subsequent to maximum medical improvement do not rule out the ALJ’s factual determination that she is permanently and totally disabled. See Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995); Portillo v. Longmont Foods,
W.C. No. 4-130-335 (November 13, 1995).
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 13, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 25, 2000 to the following parties:
Mary Ann Dowd, 585 25th Rd., #39, Grand Junction, CO 81505
V.F.W. Post 1247, 1404 Ute Ave., Grand Junction, CO 81501-4621
Kathleen Pennucci, Special Funds Unit, Division of Workers’ Compensation — Interagency Mail
J. Keith Killian, Esq., and Amy K. Eaton, Esq., P. O. Box 4859, Grand Junction, CO 81504 (For Claimant)
Stacy R. Carpenter, Esq., 3154 Lakeside Dr., #103, Grand Junction, CO 81506 (For Respondent)
BY: A. Pendroy