W.C. No. 4-381-212Industrial Claim Appeals Office.
September 10, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied a claim for temporary total disability and medical benefits. The claimant argues the ALJ erred in admitting an expert medical opinion on the issue of causation and in rejecting the opinions of the claimant’s experts. We remand for entry of a new order.
In March 1998 the claimant sustained a compensable knee injury and underwent surgery. She was placed at maximum medical improvement in August 1998 with an impairment rating of 43 percent of the left lower extremity. In March 1999 the claimant was diagnosed with a ruptured Baker cyst in the left knee. Subsequently, the claimant developed low back pain, which the claimant associated with limping caused by the injury and the cyst. In June 2000 the claimant stopped work and sought temporary disability benefits and medical treatment for the back condition.
At hearing the claimant offered the medical reports of Dr. Blanchet and Dr. Yee. In a report dated March 23, 2000, Dr. Blanchet opined the knee injury caused the claimant to limp, “and, as a consequence, significantly exacerbated degenerative changes in her back, resulting in somewhat limiting back pain.” In a May 22, 2000, report Dr. Yee stated that in view of the claimant’s medical history it is “reasonable that the [claimant’s] current back and leg symptoms are also attributed to her work-related injury.”
The respondents offered the report of Dr. Fernandez, and the report and testimony of Dr. Cook. Dr. Fernandez opined that it is unlikely the back pain is related to the knee injury because of the delay in the onset of back symptoms, and because it is unlikely the degenerative back condition would be produced by the knee injury.
In a report dated June 20, 2001, Dr. Cook opined the claimant’s back symptoms are not caused by the industrial injury, but instead by the preexisting degenerative back condition and the claimant’s advanced age. He also opined the injury did not cause the Baker’s cyst. Finally, Dr. Cook opined that Dr. Blanchet’s and Dr. Yee’s reports were improperly based on the standard of reasonableness rather than “medical probability.”
During testimony at the hearing Dr. Cook again opined the injury was not the cause of the back symptoms. When asked to explain, Dr. Cook began to testify to his understanding of the concept of “medical probability” based on information he received from the Division of Workers’ Compensation. The claimant’s counsel objected, but was overruled by the ALJ. Dr. Cook then testified as follows:
They instructed us that medical probability can be simply described, what would 51 percent of the people that have subsequent problems if the initial problem occurs [sic]. In this case, if you have a meniscal tear and knee problems, would you subsequently have an aggravation of a preexisting low back condition, spondylolisthesis or spinal stenosis. And 50 percent of the people do not have aggravation; therefore, we don’t make a relationship or causation between the two.
The ALJ denied the claim for temporary disability and medical benefits. In so doing, the ALJ found that Dr. Cook and Dr. Fernandez were “the most credible and persuasive,” while the opinions of Dr. Blanchet and Dr. Yee were “not credited, as their opinions were not stated with a degree of medical probability.”
On review, the claimant argues the ALJ abused her discretion in permitting Dr. Cook to testify to the legal definition of “medical probability,” and that his testimony should be stricken. Because the ALJ’s admission of the disputed testimony reflects a possible misapplication of the law, we set the order aside and remand for entry of a new order. Section 8-43-301(8), C.R.S. 2001.
The claimant was required to prove by a preponderance of the evidence that her back condition was proximately caused by the industrial injury, and this determination is ordinarily one of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
It is axiomatic that if an industrial injury aggravates or accelerates a preexisting condition, the resulting disability and need for treatment is a compensable consequence of the industrial injury. Thus, the claimant’s personal susceptibility or predisposition to injury does not disqualify the claimant from receiving benefits under the Act. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Here, the ALJ’s failure to sustain the claimant’s objection to Dr. Cook’s testimony indicates the ALJ may have misapplied the standards governing causation. Although qualified as an expert, Dr. Cook could not be permitted to “usurp the function of the court by expressing an opinion of the applicable law or legal standards.” Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo.App. 2000).
It is true that “reasonable medical probability” is the standard for admission of medical opinion on the issue of causation. Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106
(1971). However, in a workers’ compensation case the question is not whether it is medically probable that the general population with a preexisting condition would sustain an aggravation, but whether it is medically probable that the claimant given his or her particular circumstances would sustain an aggravation. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (causation need not be proven with mathematical certainty if circumstances indicate to a reasonable probability that disease was caused by conditions of employment).
In light of this conclusion, the order must be set aside and the matter remanded for entry of a new order based on a correct application of the law. The ALJ’s reliance on Dr. Cook’s testimony and the failure to sustain the objection permit the inference that the ALJ misapplied the law of causation. However, we don’t agree that Dr. Cook’s testimony must be stricken. In our view, his report is relevant to the issue of causation and could well be interpreted as representing a proper understanding of medical probability. Therefore, his testimony merely presents an internal conflict in his testimony which should be clarified and resolved by the ALJ on remand. Cf. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo.App. 1983) (where order was unclear as to application of the burden of proof remand was warranted).
We also note that failure to couch a medical opinion in terms of “reasonable medical probability” does not necessarily disqualify the opinion from consideration if the ALJ is satisfied from the circumstances that the opinion was expressed with the requisite degree of certainty Beaudoin Construction v. Industrial Commission, 626 P.2d 711 (Colo.App. 1981). If the ALJ discredited the opinions of Dr. Blanchet and Dr. Yee simply because their opinions were not “couched” in terms of reasonable medical probability, she erred. On remand the ALJ should clarify the basis for accepting or rejecting these opinions.
To the extent the claimant contends the evidence compelled the ALJ to find her back condition is related to the knee injury, we disagree. The record certainly contains evidence from which the ALJ could conclude the claimant failed to carry her burden of proof, and the issue remains one of fact for the ALJ. By issuing this order we should not be understood as expressing any opinion concerning the ultimate issue of causation.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 20, 2001, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 10, 2002 to the following parties:
Doris Fuhrmeister, P. O. Box 852, Longmont, CO. 80502
Associated Professional Home Health, P. O. Box 208, Niwot, CO. 80544-0208
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Richard E. Samson, Esq., and Gwyneth Ayers, Esq., 515 Kimbark, #105, Longmont, CO. 80501 (For Claimant)
Shane A. Wetmore, Esq., 600 17th St., #1600N, Denver, CO. 80202
By: A. Hurtado