W.C. Nos. 4-450-980 4-406-492Industrial Claim Appeals Office.
June 25, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which reopened the claim in W.C. No. 4-406-492, and awarded additional workers’ compensation benefits. We modify the award of temporary disability benefits and, as modified, affirm the order.
On June 6, 1998, the claimant suffered an admitted low back injury while working as a housekeeper at Pioneers Hospital. The injury is the subject of the claim designated as W.C. No. 4-406-492. The claimant reached maximum medical improvement (MMI) on May 17, 1999, and the claim was subsequently closed.
Thereafter, the claimant continued to have low back problems, and the respondents paid for additional treatment. On September 13, 1999, the claimant entered into an agreement with the employer which restricted the claimant from lifting more than 25 pounds, lifting with one arm, carrying “loads” down the stairs, and twisting her back while working. The claimant’s condition worsened. The ALJ found that by January 25, 2000, the claimant’s condition had deteriorated to the point she had difficulty arising from bed to go to work. The treating physician then restricted the claimant from work. The employer terminated the claimant’s employment on April 20, 2000, when the claimant was unable to return to work due to her physical restrictions.
The ALJ determined there was no discrete event which caused the claimant’s worsened condition. Instead, the ALJ found the worsened condition was a logical and natural consequence of the 1998 industrial injury. Therefore, the ALJ reopened the claim. The ALJ awarded additional temporary disability inclusive of the cost of COBRA replacement insurance, and medical benefits including the surgery recommended by Dr. Dohm.
I.
On appeal, the respondents contend there is not substantial evidence to support the ALJ’s finding of a causal connection between the worsened condition and the 1998 injury. The respondents also contend the ALJ failed to consider evidence that suggests the worsened condition was caused by the claimant’s breech of the September 1999 agreement. Further, the respondents rely on Bill Lawley Ford v Miller, 672 P.2d 1031
(Colo.App. 1983), to argue that agreement limited the scope of the claimant’s employment and the claimant was injured while violating the agreement. Consequently, they contend the worsened condition did not occur “in the course” of employment. Alternatively, the respondents contend the ALJ erroneously failed to impose penalties under §8-42-112(1)(b), C.R.S. 2000. We reject these arguments.
Section § 8-43-303(1), C.R.S. 1998, authorizes the ALJ to reopen a claim on the ground of a change in condition within six years of the injury. A “change of condition” refers to a change in the condition of the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
The determination of whether the claimant’s pain is the result of a preexisting condition, the progression of an industrial injury, or an intervening event is one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2000. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, without regard to the existence of contradictory testimony or contrary inferences. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Further, causation may be inferred from circumstantial evidence. Peter Kiewit Sons’ Co. v. Industrial Commission, 124 Colo. 217, 236 P.2d 296
(1951); Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
Medical evidence is neither required nor determinative of causation. Rockwell International v. Turnbull, supra. A claimant’s testimony, if credited, may be sufficient to support the ALJ’s determination of causation. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983).
The claimant testified that she had continuous problems from the industrial injury at the time of MMI, which gradually worsened during her employment. (Tr. 15, 16). She also denied any accident or injury after June 1998 and stated that she only performed her “normal routine” at home. (Tr. p. 17).
The respondents’ arguments notwithstanding, there is not overwhelming lay or medical evidence in the record that the claimant’s worsened condition was caused by a progression of the claimant’s preexisting condition prior to the industrial injury. Under these circumstances, the ALJ could reasonably infer that the worsened condition was due to a gradual worsening of the claimant’s residual condition from the industrial injury.
Similarly, the record does not compel a finding that the worsened condition was caused by a violation of the September 1999 agreement. Thus, the ALJ did not err in refusing to reduce compensation under §8-42-112(1)(b), which provides for a fifty percent reduction of temporary disability benefits where the industrial injury “results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.”
We assume arguendo that the September 1999 agreement constitutes a “reasonable rule adopted by the employer” for the claimant’s safety. However, the record contains highly conflicting evidence concerning whether the claimant violated the rule. The claimant denied any violations, but the employers’ witnesses stated they observed the claimant violate the agreement. Under such circumstances, it was solely the province of the ALJ to resolve the conflict in the evidence. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Contrary to the respondents’ assertion, the ALJ explicitly considered whether the worsened condition was caused by the claimant’s violation of the September 1999 agreement. However, crediting the claimant’s testimony that she complied with the agreement to “best of my knowledge,” the ALJ found that any violation was “casual and minimal.” (Tr. pp. 39, 51).
The respondents are obviously dissatisfied with the ALJ’s credibility determinations. However, based upon this record we cannot say as a matter of law that the ALJ erroneously credited the claimant’s testimony over the contrary testimony of the employer’s witnesses.
The ALJ’s credibility determinations are binding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). There are no extreme circumstances here.
The respondents’ witnesses testified the claimant told them about the September 1999 agreement. However, with record support, the ALJ found that the employers’ witnesses had not seen the written agreement. Therefore, he found their testimony concerning the claimant’s violations was conjecture.
Furthermore, the employer’s Human Resource Assistant Administrator-Patricia Merriam, stated the claimant’s supervisors never notified her the claimant had violated the agreement. (Tr. p. 104, 105). Ms. Merriam’s testimony that the claimant would have been subject to disciplinary action if she failed to abide by the agreement, and her admission that no such discipline was imposed supports the ALJ’s determination that the co-workers did not observe any violations of the agreement which were more than “casual and minimal.”
Moreover, the ALJ’s findings support his determination that any such violation of the agreement was insufficient to cause the worsening of the claimant’s condition. Based upon this determination, the ALJ necessarily rejected the respondents’ contention that the worsening occurred outside the scope of employment established by the September 1999 agreement See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (may consider findings which are necessarily implied by the ALJ’s order).
II.
The respondents also contend the ALJ erroneously found the claimant’s health insurance terminated April 20, 2000, instead of April 30, 2000. We agree and modify the ALJ’s order accordingly.
The ALJ determined the claimant’s average weekly wage and resulting temporary disability rate included the claimant’s COBRA insurance replacement cost of $674.22 per month effective April 20, 2000. (Finding of Fact 10). The claimant testified that her employment terminated April 20, 2000, and that as a result, her enrollment in the employer’s group health insurance terminated. Claimant’s Exhibit 8 was offered to show that the COBRA replacement premium was over $600 per month. (Tr. p. 20). However, the claimant did not specifically assert that the replacement coverage became effective April 20, 2000, nor she did not dispute the statement of the respondents’ attorney that the employer’s group health insurance terminated April 30, 2000. (Tr. p. 21). Neither did the claimant’s attorney cross-examine the respondents’ witness who testified that the COBRA insurance became effective May 1, 2000. (Tr. p. 108).
The Change Request form in Claimant’s Exhibit 8 refers to a termination date of “04/20/00.” However, it does not state whether that is the date of the employment termination which triggered the change or the date the employer’s group health insurance coverage terminated. In contrast, the remainder of Exhibit 8, which is a letter from the group health insurer, stated that the claimant’s enrollment in the employer’s group health insurance plan terminated April 30, 2000. We conclude the record does not support the ALJ’s finding that the claimant’s health insurance was discontinued, and the COBRA premium became effective, on April 20 rather than April 30, 2000. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion the issue is a question of law). The ALJ’s order shall be modified accordingly.
III.
Finally, the respondents contend they had no notice the issue of medical authorization was endorsed for adjudication. Therefore, they contend the ALJ exceeded his authority by adjudicating the issue. We conclude the issue was tried by consent.
The claimant’s Application for Hearing endorsed the issues of medical benefits. Specifically, the claimant listed the issue as reasonable and necessary and related to the injury. During direct examination of Ms. Merriam, the respondents’ attorney asked her whether Dr. Dohm was authorized to treat the injury. (Tr. p. 97). There was no objection by the claimant. Under these circumstances, the issue of authorization was tried by consent. See Cox v. Bertsch, 730 P.2d 889
(Colo.App. 1986)
Ms. Merriam testified the claimant had been treating with Judy Eskelsson, “who is our nurse practitioner, and Judy had referred her to Dr. Dohm.” (Tr. p. 97). Eskelsson’s testimony supports the ALJ’s implicit determination that the employer gave the claimant permission to treat with Dr. Dohm. See Greager v. Industrial Commission, 701 P.2d 168
(Colo.App. 1985).
The respondents’ remaining arguments are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 8, 2000, is modified to provide that the respondents shall pay temporary total disability benefits at the rate of $180.13 per week from January 26 through April 30, 2000, and at the rate of $283.58 per week from May 1 through August 13, 2000. As modified, the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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 June 25, 2001 to the following parties:
Debbie Eachus, P. O. Box 1359, Meeker, CO 81641
Pioneers Hospital, 345 Cleveland St., Meeker, CO 81641-3238
Colorado Hospital Association Trust, Support Service, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Lauretta Martin Neff, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy