W.C. No. 4-406-492.Industrial Claim Appeals Office.
March 28, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated August 10, 2004, which reopened the claim and awarded additional medical and temporary disability benefits. We affirm the order and deny the respondents’ request to stay the review.
The claimant suffered a compensable low back injury in 1998. The claim was closed in 1999 but reopened in January 2000 due to a worsened condition. In an order dated August 13, 2002, the ALJ determined the claimant reached MMI from the worsened condition on December 19, 2001, and rejected the respondents’ contention that the causal connection between the original injury and the claimant’s worsened condition was severed by an intervening injury in December 2001. Instead, the ALJ found the December 2001 slip and fall injury was a temporary aggravation of the original injury which resolved within two weeks. No appeal was taken from the August 13 order and the claim was closed.
In January 2004 the claimant alleged another worsening of condition. A hearing was scheduled for May 25, 2004, on the claimant’s petition to reopen. At the commencement of the hearing, the respondents requested permission to present “new evidence” that claimant’s condition was the result of the December 2001 slip and fall. (Tr. p. 5). The claimant objected on grounds the issue was not affirmatively plead. The ALJ sustained the objection. (Tr. p. 8).
The claimant then testified that her condition gradually began to worsen in July 2002 to include right-sided symptoms. (Tr. pp. 12-13). She also stated she began to suffer muscle spasms which were more severe and more frequent after May 2003. (Tr. p. 27). The claimant added that as a result of the worsened condition, she became unable to perform the duties required of her employment as a delicatessen clerk and consequently, was laid off from that employment. (Tr. p. 14). Further, the claimant presented evidence that Dr. Dohm opined the claimant was no longer at MMI due to a worsening of her condition from the industrial injury and recommended additional surgery.
The ALJ found that as a natural consequence of the industrial injury, the claimant suffered a worsening of condition effective October 2, 2002. Therefore, the ALJ granted the petition to reopen. The ALJ also determined the claimant was no longer at MMI and that the worsened condition rendered the claimant physically unable to perform her duties as a deli clerk. Therefore, the ALJ found the claimant proved entitlement to additional temporary disability benefits.
The ALJ also determined the claimant began treating with Dr. Rollins as a result of a bona fide referral from Dr. Dorm in the normal progression of treatment, and that Dr. Rollins’ treatment was reasonably necessary to cure or relieve the effects of the industrial injury. Therefore, the ALJ found Dr. Rollins is an authorized treating physician and required the respondents to pay for Dr. Rollins’ treatment of the industrial injury.
I.
On review the respondents contend the record fails to support the ALJ’s finding of a worsened condition. Alternatively, the respondents contend the worsening was caused by an intervening injury, and argue that it was reversible error for the ALJ to adjudicate the petition to reopen without allowing the respondents’ to present the “new” evidence. We disagree.
Because the claimant petitioned to reopen the claim it was the claimant’s initial burden to prove a worsened condition that was caused by the industrial injury. Accordingly, we agree with the respondents’ that the issue of “causation” was automatically endorsed for adjudication regardless of whether it was affirmatively plead by the respondents. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 869
(Colo.App. 2001). It follows, the ALJ erred insofar as he precluded litigation of the respondents’ theory of an intervening cause simply because the theory was not affirmatively plead. However, we conclude the ALJ’s error was harmless.
A claim may be closed by a “final award” resulting from an admission or order after a contested hearing. The term “award” includes an order which grants or denies benefits. Burke v. Industrial Claim Appeals Office, 905 P. 2d 1 (Colo.App. 1994). Under the statutory provisions currently codified at § 8-43-303, C.R.S. 2004, the parties are precluded from reconsideration of any issue closed by a final award except upon a showing of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
The issue of whether the December 2001 slip and fall was an efficient, intervening injury was previously litigated before the ALJ and resolved against the respondents. By failing to appeal the August 13 order, the ALJ’s order became a “final award” which closed the claim. Consequently, the issue could not be challenged in defense of the claimant’s 2004 petition to reopen unless the respondents petitioned to reopen the issue on the grounds of error or mistake. See City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162, 1164 (Colo.App. 2002).
The respondents did not file a petition to reopen the issue. Under these circumstances, the ALJ properly determined that whether the December 2001 fall was an efficient intervening injury was not properly endorsed for adjudication at the hearing on May 25, 2004.
Next, we must uphold the ALJ’s determination that the claimant proved a worsened condition from the industrial injury if supported by substantial evidence in the record. In determining whether the ALJ’s findings of fact are supported by the evidence, we must defer to the ALJ’s credibility determinations and the probative weight he afforded the evidence he found persuasive. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). Insofar as the evidence is subject to conflicting inferences, we are bound by the ALJ’s plausible inferences from the evidence. See Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The respondents arguments notwithstanding there is substantial evidence in the claimant’s testimony to establish a worsening of the claimant’s physical condition from the industrial injury. Further, the claimant’s testimony is corroborated by the testimony of her mother. (Tr. p. 48). Consequently, we cannot say the ALJ erred in crediting the claimant’s testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony).
The ALJ’s finding is buttressed by the results of a July 2003 functional capacity evaluation which concluded the claimant’s work capacity was substantially decreased from October 2001 when Dr. Worwag imposed medical restrictions for the industrial injury. Therefore, we reject the respondents’ contention the record fails to support the order reopening the case.
II.
The respondents also contest the ALJ’s finding that Dr. Rollins is an authorized provider. We perceive no basis to disturb the ALJ’s award of medical benefits to Dr. Rollins’ treatment.
The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228
(Colo.App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 507 (Colo.App. 1995). A physician who commences to treat the industrial injury upon a referral made in the “normal progression of authorized treatment” becomes an authorized treating physician. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). A referral based upon the treating physician’s independent medical judgment is considered a referral in the normal progression of authorized treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Furthermore, the mere fact the claimant requests a referral does not remove the referral from the “normal progression” of treatment if the referring physician exercises independent judgment regarding the advisability of the referral. Walling v. Big Ray’s Chop Shop, W.C. No. 4-489-603 (September 10, 2002).
It is apparently undisputed the claimant requested Dr. Dohm refer her to Dr. Rollins for management of the narcotic pain prescriptions because unlike Dr. Dohm, Dr. Rollins did not require an office visit prior to refilling prescriptions. (Tr. p. 35). Admittedly, Dr. Dohm could not specifically recall making the referral, but he admitted his office records established that he approved the referral request. (Dohm depo. pp. 45, 46). Dr. Dohm also testified that in his independent judgment the referral to Dr. Rollins was reasonable even if it only served as a convenience to the claimant. (Dohm depo. pp. 40, 47). Based on this testimony the ALJ could and did, reasonably infer that Dr. Dohm referred the claimant to Dr. Rollins in the exercise of his independent judgment, and the ALJ’s finding supports his determination that Dr. Rollins is an authorized treating physician.
III.
The respondents contend the claimant abandoned her employment with the respondent-employer, and thereafter obtained other employment. Therefore, the respondents argue the claimant was responsible for the termination of employment with the respondent-employer and barred from receiving additional temporary disability benefits for the worsened condition by operation of § 8-42-105(4), C.R.S. 2004 and identical language in § 8-42-103(1)(g), C.R.S. 2004 (termination statutes).
The claimant contends the respondents failed to raise this issue before the ALJ. We agree. Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988) (claim to reduce benefits that would otherwise be paid is in nature of affirmative defense). In any case, we conclude the termination statutes do not operate as a permanent bar to the claimant’s receipt of temporary disability benefits under these facts.
The termination statutes provide that where “a temporarily disabled employee is responsible for termination of employment, the resulting wage law shall not be attributable to the on-the-job injury.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002), the Court of Appeals construed the statute to apply when the claimant’s “voluntary conduct caused his or her termination and the injury played no part in the discharge.” However, more recently i Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004), the Supreme Court held the termination statutes are not a permanent bar to temporary disability benefits when the worsening of a prior work-related injury causes the claimant’s wage loss.
The claimant’s request for additional temporary disability benefits was predicated on a worsening of the claimant’s condition subsequent to the separation of her employment with the respondent-employer. Therefore, regardless of the cause of that employment separation, the termination statutes would not bar her receipt of additional temporary disability benefits. Accordingly, we do not consider the respondents’ argument that the ALJ erroneously admitted hearsay testimony concerning the cause of the claimant’s separation from the respondent-employer.
Instead, the claimant’s right to additional temporary disability benefits is governed by City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), where the court held that once a claimant reaches MMI for an industrial injury a subsequent worsening of condition does not entitle the claimant to an award of additional temporary disability benefits unless the worsened condition resulted in additional physical restrictions which, in turn, caused impairment of the claimant’s residual earning capacity beyond that which existed at maximum medical improvement.
The ALJ credited the claimant’s testimony that the worsened condition impaired her ability to perform various activities, including activities required of her employment as a deli clerk and as a result, the claimant was laid off. The ALJ was also persuaded by results of a July 2003 functional capacity evaluation which concluded the claimant’s functional capacity was significantly reduced from October 2001 when Dr. Worwag imposed medical restrictions for treatment of the industrial injury. (Finding of Fact 3). Moreover, the ALJ’s findings support the conclusion the claimant sustained her burden to prove the worsened condition caused an additional wage loss. Therefore, the ALJ did not err in awarding additional temporary disability benefits.
The respondents remaining arguments have been considered and are not persuasive.
IV.
Finally, we note that following transmission of this case for our review, the respondents filed a “Motion to Defer, Stay and Hold in Abeyance a Final Decision for Consolidation with a Second Petition for Review Filed by Respondents.” The motion asserts that subsequent to the entry of the ALJ’s order of August 10, 2004 order, the ALJ entered another order in this case dated December 21, 2004, “concerning similar facts and issues of law.” Apparently the respondents appealed the December 21 order. Further, the respondents contend the “factual and legal issues” in both orders are “not only similar but also are interrelated” that our review of the August 10 order alone would result in manifest injustice and potentially inconsistent decisions. The respondents requests that review of the ALJ’s August 10 order be stayed and deferred until receipt of the record on the respondents’ petition to review the ALJ’s December 21 order. We deny the motion.
Pursuant to § 8-43-301(8), C.R.S. 2004, we have sixty days in which to enter our order on a petition for review. The only provision permitting an extension of time for entry of an order is § 8-43-301(9), C.R.S. 2004, which permits us to extend the time by thirty days upon the filing of a “stipulated motion requesting that consideration of the appeal be deferred pending ongoing settlement negotiations.” Here, there is no stipulated motion to stay the appeal pending “settlement negotiations.” Consequently, the respondents’ factual assertions do not afford us grounds to “stay” our review of the ALJ’s order. See Ramirez v. Excel Corporation, W.C. No. 3-990-123 (October 26, 1995). Therefore, we deny the respondent’s motion.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 10, 2004, is affirmed.
IT IS FURTHER ORDERED that the respondents’ motion to stay or defer review of the August 10 order is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Debbie Eachus, Grand Junction, CO, Melissa Ferrell, Pioneers Hospital, Meeker, CO, Mary Ann Donelson, Support Services, Inc., Englewood, CO, Amy K. Eaton, Esq., Grand Junction, CO, (For Claimant).
Clyde E. Hook, Esq., Denver, CO, (For Respondents).