W.C. No. 4-377-887Industrial Claim Appeals Office.
October 8, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Corchado (ALJ) which required them to pay temporary disability and medical benefits for a compensable groin injury. We affirm.
The ALJ found the claimant suffered a groin injury while “pulling orders” during his employment as a grocery warehouseman. The claimant testified that the day after the injury he reported the accident to his supervisor who instructed him to seek treatment from his personal physician at Kaiser Permanente (Kaiser). The claimant began treating at Kaiser on February 9, 1998, and was diagnosed with a “groin strain.” Under these circumstances, the ALJ determined that Kaiser is an authorized medical provider, and ordered the respondents to pay “medical bills connected with treatment of the Claimant’s groin injury.”
On March 3, 1998, the claimant filed a written injury report. Thereafter, the employer referred the claimant to the Gates Clinic where he was treated by Dr. Basse until March 23, 1998. The claimant returned to work and on May 15, 1998, Dr. Basse placed the claimant at maximum medical improvement (MMI).
The ALJ found the claimant’s groin injury worsened after May 15, 1998, and that the claimant was physically unable to return to work after August 3, 1998. Therefore, the ALJ awarded temporary total disability benefits.
I.
On review the respondents contend the employer was not aware the claimant suffered a work-related groin injury until receipt of the written report dated March 3, 1998. Therefore, they argue that Kaiser is not an authorized provider. We disagree.
As argued by the respondents, § 8-43-404(5), C.R.S. 1999, affords the employer a statutory right to select the authorized treating physician. Section 8-43-404(5)(a) provides that:
“the employer or insurer has the right in the first instance to select the physician who attends said injured employee. If the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor.”
An employer has a duty to tender treatment as soon as “knowledge of the injury first comes to its attention.” Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The employer has sufficient information to trigger its duty to tender medical treatment when the employer has:
“some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.”
Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). Further, oral notice may be sufficient to trigger the employer’s duty to designate a provider. 689 P.2d at 684.
The ALJ found the claimant orally reported his work-related injury to the employer in February 1998. (Finding of Fact 2). Further, the ALJ found that the employer did not tender the services of a physician at the time of the oral report. Therefore, the ALJ determined the right of selection passed to the claimant who selected Kaiser to treat the injury.
The ALJ’s findings are supported by the claimant’s testimony, and therefore must be upheld. Section 8-43-301(8), C.R.S. 1999 Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). The claimant testified that he told the supervisor he injured himself “sometime yesterday when I was pulling orders.” (Tr. pp. 15, 16, 31). We agree with the ALJ that a reasonably conscientious manager would recognize that an injury while “pulling orders” might involve a compensable claim. Because the employer failed to tender the services of a physician at the time of the oral report, the right of selection passed to the claimant and the respondents could not recapture the right of selection after March 3. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
It is true the claimant stated the injury occurred on February 4, 1998, and the claimant’s time cards indicate he was not working on February 4, 1998. However, this conflict did not preclude the ALJ from crediting the claimant’s testimony that he orally reported the injury to the employer before March 3.
The ALJ may credit all, part, or none of a witness’s testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Furthermore, where the claimant’s testimony is subject to conflicting inferences, it is the ALJ’s sole prerogative to resolve the conflicts, and determine the inferences to be drawn. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant admitted he may have been confused about the injury date. (Tr. p. 47). The ALJ recognized the claimant’s confusion and implicitly rejected the claimant’s testimony that the injury occurred on February 4. Instead, the ALJ found the injury occurred in late January or early February. (Finding of Fact 1).
II.
Next, the respondents contend the ALJ failed to determine whether the claimant’s need for medical treatment after March 1998 was causally related to the industrial injury. The respondents argue that Dr. Basse discharged the claimant from all treatment for the work-related injury in March 1998, and the claimant’s subsequent treatment was due to nonwork-related prostatitis and epididymitis. We are not persuaded.
The determination of which of two possible causes resulted in the need for medical treatment is one of fact for determination by the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Here, the medical evidence is subject to conflicting inferences concerning the cause of the claimant’s need for treatment after March 1998. In July 1998 Dr. Basse opined that “it appears that most all of [the claimant’s] symptoms are directly related to that specific event,” of lifting a heavy box at work. However, in September 1998, Kaiser diagnosed and treated the claimant for epididymitis and prostatitis. Dr. Basse indicated she had no opinion whether Kaiser’s diagnosis of epididymitis and prostatitis is correct. (Tr. p. 76) However, she stated that at the time of the diagnosis, the claimant’s complaints were the same as they had been after the industrial injury. Dr. Basse also opined that despite Kaiser’s diagnosis there was a work-related component to the claimant’s ongoing pain complaints. (Tr. pp. 75, 83).
Dr. Hughes testified that the claimant’s symptoms could be symptoms of epididymitis. (Tr. p. 68). However, Dr. Hughes also stated that when he examined the claimant in July 1998, the claimant’s symptoms were inconsistent with epididymitis. (Tr. p. 69). Further, both Dr. Hughes and Dr. Basse agreed that the claimant’s continued work aggravated the groin injury and could have impeded his recovery. (Tr. pp. 71, 90).
The ALJ resolved the conflict by crediting Dr. Hughes’ opinion that the claimant’s continuing groin pain is the result of “his occupational groin injury.” (Hughes report July 31, 1998; Conclusions of Law G). See Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999) (opinions not specifically credited implicitly rejected). Consequently, the ALJ determined that the claimant’s need for ongoing medical treatment is due to the effects of the industrial injury.
In any case, the ALJ only ordered the respondents to pay for medical treatment of the “groin injury.” Therefore, we do not read the ALJ’s order as requiring the respondents to pay for any treatment which is not designed to cure or relieve the effects of the industrial injury. See Public Service Company of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999) (ancillary medical treatment for non-occupational conditions necessary to achieve optimum treatment of industrial injury compensable if designed to cure or relieve effects of industrial injury).
III.
Finally, the respondents contend the ALJ erred in awarding temporary total disability benefits after May 15, 1998, because Dr. Basse placed the claimant at MMI, and the claimant did not obtain a Division-sponsored independent medical examination (IME). We perceive no error.
Section 8-42-105(3)(a), C.R.S. 1999, provides that temporary total disability benefits terminate when the claimant reaches MMI. Under § 8-42-107(8)(b) an authorized treating physician’s determination of MMI is conclusive of the claimant’s entitlement to further temporary disability benefits unless the party disputing the MMI determination requests a Division-sponsored IME Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
However, the question of whether the claimant was at MMI on May 15, 1998, is separate and distinct from whether the claimant’s condition from the work-related injury remained stable through August 1998. This is true because a claimant can reach MMI and suffer a subsequent deterioration to the point that he is no longer at MMI. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Consequently, the IME provisions in § 8-42-107(8)(b) are not applicable where the claim for additional benefits is based upon the allegation of a worsened condition.
Here, the claimant’s request for temporary disability benefits commencing August 1998, does not dispute Dr. Basse’s finding of MMI in May 1998. Therefore, the claimant’s failure to request a Division-sponsored IME on the issue of MMI did not preclude the ALJ from awarding further benefits.
Further, the ALJ was persuaded the claimant proved a worsening of his condition after MMI. The ALJ also determined that as a result of the worsening the claimant could not continue to work after August 4, 1998. The ALJ’s findings are supported by substantial evidence in the record. Consequently, the ALJ did not err in awarding temporary total disability benefits commencing August 4, 1998. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 25, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Robert M. Socolofsky
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 8, 1999 to the following parties:
Silas Goss, 810 S. Santa Fe Ave., Salina, KS 67401
Compass Logistics, Attn: Connie Booth, 3155 S. Platte River Dr., Englewood, CO 80110
Dave Holmes, Managed Comp., 14275 Midway Rd., #380, Dallas, TX 75244
Huston General Insurance Co., c/o Lindsey Morden Claim Services, Inc., Attn: Steve Bulmer, 7430 E. Caley Ave., #110, Englewood, CO 80111
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
David J. Dworkin, Esq. and Melissa J. Loman, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Pendroy