W.C. No. 3-757-021Industrial Claim Appeals Office.
October 30, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), which denied her claim for temporary total disability benefits, permanent total disability benefits, and medical benefits. The claimant’s primary argument is that the ALJ erred in finding that she did not sustain compensable Thoracic Outlet Syndrome (TOS). We affirm.
The claimant sustained an admitted injury to her left shoulder on October 5, 1984, and she underwent two surgeries. After a protracted course of litigation, an order was issued on February 25, 1991, which determined that the claimant reached maximum medical improvement (MMI) on November 8, 1986.
In 1996 the claimant filed an Application for Hearing seeking additional temporary disability benefits, medical benefits, and permanent total disability benefits. The claimant testified that by 1989 she began to develop symptoms of TOS, including chronic pain in her neck and left shoulder area. In support of this position, the claimant introduced the testimony of Dr. Baker. Dr. Baker testified that she began to treat the claimant in 1991, and has subsequently reached the conclusion that the claimant has TOS as a result of the 1984 industrial injury. Dr. Baker stated that her diagnosis is supported by redness and swelling in the claimant’s left upper extremity, as well as the fact that the claimant received six or seven weeks of relief following an “interscalene block.” (Tr. May 7, 1997, pp. 44, 48-49). Dr. Baker recommended a course of physical therapy designed to relieve the symptoms of TOS. (Tr. May 7, 1997, p. 50).
The respondents introduced the report of Dr. Gulevich, who examined the claimant in March 1994 and April 1997. Dr. Gulevich opined that the claimant was at MMI for her 1984 injury when he examined her in March 1994, and remained so in April 1997. He diagnosed the claimant as suffering from chronic left shoulder and neck pain associated with the 1984 injury. Further, he stated that he examined the claimant for TOS and opined that she “does not meet the diagnostic criteria established by the Workers Compensation Upper Extremity Task Force for probable or definite TOS.” In support, Dr. Gulevich noted that the interscalene blocks relieved “pain in her shoulder and neck-not her hands.” Moreover, Dr. Gulevlich noted that the claimant gave a history of receiving benefit from the interscalene block a day after the injection, and the benefit lasted for five to seven days.
Crediting the reports of Dr. Gulevich, the ALJ found that the claimant failed to prove that she developed TOS as a result of the industrial injury. Consequently, the ALJ denied the claimant’s request for additional temporary total disability benefits and medical benefits on account of TOS.
The ALJ also denied the claim for permanent total disability benefits. The ALJ found that the claimant is suffering from the non-industrial condition of peripheral neuropathy, and failed to introduce “persuasive evidence relating her inability to work to the injuries or diseases” resulting from the industrial injury.
I.
On review, the claimant contends the ALJ erred in determining that she failed to prove the existence of TOS as a result of the industrial injury. The claimant specifically disputes Finding of Fact 5 in which the ALJ stated that Dr. Gulevich “ruled out” TOS. Moreover, the claimant argues that Dr. Gulevich, and therefore the ALJ, erred in relying on the Division of Workers’ Compensation Medical Treatment Guidelines because the guidelines do not apply to the claimant’s 1984 industrial injury.
The claimant also argues that had the ALJ correctly resolved the compensability of the TOS she would be entitled to additional temporary total disability benefits, medical benefits, and a change of physician to Dr. Baker. The claimant reasons that the development of TOS vitiates the prior finding of MMI and reestablishes her right to benefits.
In order to receive additional compensation for temporary disability and medical expenses, the claimant was required to prove that the need for these benefits was “proximately caused by” the 1984 industrial injury. See § 8-41-301(1)(c), C.R.S. 1998 [formerly § 8-52-102(1)(c) C.R.S., 1986]; City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). The question of whether the claimant proved the requisite casual relationship was one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Because the question of causation is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In evaluating the sufficiency of the evidence we must view the record in the light most favorable to the prevailing party. Further, we are obliged to defer to the ALJ’s resolution of conflicts and the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, the ALJ is not held to a crystalline standard in expressing his findings, so long as the ALJ makes sufficient findings to indicate the basis of the ruling. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
It is true, as the claimant argues, that Dr. Gulevich’s report does not explicitly state that he “ruled out” TOS. However, the ALJ’s Finding of Fact 5 constitutes a plausible interpretation of Dr. Gulevich’s report. Dr. Gulevich stated that the claimant’s examination did not meet the diagnostic criteria for TOS as defined by the Medical Treatment Guidelines. Moreover, Dr. Gulevich did not list TOS as one of the claimant’s diagnoses on page 7 of the April 30 report. Consequently, there was no error in the ALJ’s finding that Dr. Gulevich ruled out TOS.
Neither do we perceive any error in Dr. Gulevich’s citation of the diagnostic criteria for TOS found in the Upper Extremity Medical Treatment Guidelines, Rule of Procedure XVII, Exhibit B, Part III, 7 Code Colo. Reg. 1101-3. It is true, as the claimant argues, that the Medical Treatment Guidelines were adopted by the Director of the Division of Workers’ Compensation in accordance with the 1991 amendments to the Workers’ Compensation Act. See
1991 Colo. Sess. Laws, ch. 219 at 1297-1298; Rule of Procedure XVII(A), 7 Code Colo. Reg. 1101-3 at 85. Consequently, the guidelines do not create a binding legal definition of TOS for purposes of the claimant’s 1984 injury. See 1991 Colo. Sess Laws, ch. 219, § 61 at 1342. (1991 amendments apply to injuries on or after July 1, 1991); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992); Rule of Procedure XVI(C), 7 Code Colo. Reg. 1101-3 at 71. (Medical Treatment Guidelines to be used in preparing treatment plans for injuries occurring on or after July 1, 1991).
However, we do not believe Dr. Gulevich or the ALJ viewed the Medical Treatment Guidelines as creating a binding legal standard defining the diagnostic criteria for TOS. Rather, we believe that Dr. Gulevich referred to the guidelines as an evidentiary tool which accurately summarizes the medically accepted criteria for diagnosing TOS.
C.R.E. 703 provides that experts may form opinions based on “facts or data” perceived by the expert if of a type “reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject.” Here, a plausible interpretation of Dr. Gulevich’s report is that he considers the Medical Treatment Guidelines to be a reasonable source for identifying the diagnostic criteria for TOS. In fact, Dr. Baker testified that the Division guidelines “actually do flow quite well” for purposes for diagnosing and treating TOS. (Tr. June 23, 1997, p. 61). Because Dr. Gulevich and the ALJ considered the Division guidelines as an evidentiary tool listing the diagnostic criteria for TOS, not a binding legal standard, there was no error in the ALJ’s order. See City of Aurora v. Vaughn, 824 P.2d 825
(Colo.App. 1991) (question of whether claimant’s hearing loss was best measured by the American Medical Association Guides to the Evaluation of Permanent Impairment or another scientific formula was a question of fact for the ALJ).
It follows that the ALJ did not err in denying additional temporary total disability and medical benefits. As the ALJ recognized, there was conflicting expert medical opinion concerning whether or not the claimant developed TOS which caused a worsening of condition and the need for additional benefits and treatment. It was the ALJ’s prerogative to resolve this conflict, and we cannot say he erred in relying on Dr. Gulevich’s opinions Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant also argues that the ALJ erred because he made no specific finding concerning whether she is entitled to a change of physicians. However, we conclude that the ALJ implicitly rejected the request for a change. The claim for a change of physician was predicated on Dr. Baker’s testimony that the claimant needs additional physical therapy to treat TOS. Since the ALJ has found that the claimant does not have TOS as a result of the injury, an order for a change of physician would be superfluous. The denial of this request for a change is inherent in the ALJ’s overall rejection of the claim for medical benefits.
II.
The claimant also contends that the ALJ erred in denying the claim for permanent total disability benefits. Specifically, the claimant argues that the ALJ “ignored” her theory, advanced at the May 7 hearing, that the issue of permanent total disability was premature because she was no longer at MMI. We disagree.
The ALJ did not “ignore” the claimant’s assertion that she was no longer at MMI. To the contrary, the ALJ considered and rejected the theory because he found that the claimant failed to prove the development of TOS as a result of the industrial injury.
The claimant endorsed the issue of permanent total disability, as did the respondents. The claimant did not seek to withdraw the issue prior to the hearing, and the respondents stated their desire to proceed on permanent total disability with the understanding that the ALJ might rule against them on the question of MMI. (Tr. May 7, 1997, Tr. pp. 16-17). Under the circumstances, it was proper for the ALJ to consider the issue of permanent total disability in conjunction with the other issues, including MMI.
Furthermore, the fact that an award of permanent total disability benefits was an alternative form of relief to additional temporary total disability benefits does not mean that the issues could not be litigated at the same hearing. In fact, claimant’s counsel conceded that he could “adduce testimony with the respect to permanent total.” (Tr. May 7, 1997, p.p. 28). Consequently, the ALJ did not abuse his discretion in proceeding to hear the issue of permanent total disability. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988) (ALJ has wide discretion in conduct of hearing process).
The claimant’s remaining arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 31, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 30, 1998 to the following parties:
Rose Eldi, 4141 Depew St., Denver, CO 80212
Montgomery Ward Company, % Frank M. Cavanaugh, Esq., 1700 Broadway, #1910, Denver, CO 80290
Aetna Technical Services, Inc., % Judy McKim, CNA Insurance, P. O. Box 17369 T. A., Denver, CO 80217
Robert T. Lego, Esq., Prentice Point, #500, 5299 DTC Blvd., Englewood, CO 80111-3326 (For Claimant)
Frank M. Cavanaugh, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
BY: _______________________