W.C. No. 4-280-325Industrial Claim Appeals Office.
January 9, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied a petition to reopen based on worsened condition. The claimant contends the ALJ erred in requiring the claimant to present medical evidence of a worsened condition, failed to give sufficient weight to the opinion of a Division-sponsored independent medical examination (DIME) physician that the claimant sustained a rotator cuff injury, and gave inappropriate weight to a medical record. The claimant further contends the ALJ ignored the legal principle that industrial aggravations of preexisting conditions constitute compensable events. We affirm.
In November 1995, the claimant sustained an admitted injury to his right shoulder and sternoclavicular joint. In June 1996 the claimant underwent surgery to the right proximal clavicle. In August 1996 the claimant complained of pain in his left shoulder, and shortly thereafter reported pain, stiffness, and weakness in both shoulders. Nevertheless, the treating physician placed the claimant at maximum medical improvement (MMI) on December 5, 1996. In August 1997 the treating physician stated he did not see any “correlation between the [claimant’s] rotator cuffs and the W/C injury.”
In March 1997 the claimant underwent a DIME on the issues of MMI and medical impairment. The DIME physician agreed the claimant reached MMI on December 5, 1996, and diagnosed the claimant with “post-operative excision of medial and of right clavicle,” and “rotator cuff injury, right shoulder.” Although the DIME physician was aware there was a question whether the claimant’s preexisting diabetes played a part in his condition, the DIME physician stated that he “assumed that the injury was to the right shoulder as well as to the right sternoclavicular joint.” Consequently, the DIME physician assigned a 23 percent upper extremity impairment based on lost range of motion as measured at the shoulder. The respondents filed a final admission based on the DIME physician’s rating.
In January 1998 the claimant underwent surgery to repair his left rotator cuff. The respondents did not agree to pay for the surgery. In May 1999, the claimant underwent surgery to repair the right rotator cuff. Again, the respondents refused to pay for the surgery.
The claimant filed a petition to reopen and sought medical benefits and temporary disability benefits based on worsening of the right shoulder condition. The claimant contended the need for the May 1999 surgery was caused by the worsening. At the hearing the respondents offered the report and testimony of Dr. Hughes. Dr. Hughes testified the worsening of the claimant’s shoulder condition was caused by the claimant’s preexisting diabetes. Specifically, Dr. Hughes opined diabetes caused metabolic changes resulting in the dissolution of the tendons in both shoulders. This condition caused the need for rotator cuff surgery, but in Dr. Hughes’ opinion was in no way a natural consequence of the 1995 industrial injury. (Tr. pp. 41-45; Respondents’ Exhibit H, p. 155).
The ALJ found the claimant failed to present sufficient persuasive evidence that the industrial injury caused a worsening of the claimant’s condition, or that the May 1999 surgery was necessitated by the industrial injury or its natural results. Instead, the ALJ credited the opinion of Dr. Hughes that the claimant’s need for surgery was caused by tendonopathy caused by the claimant’s preexisting and progressive diabetes. The ALJ also found the medical records do not relate the May 1999 surgery to the industrial injury. (Finding of Fact 17). Finally, the ALJ noted the claimant injured his right shoulder on December 30, 1998 in a non-work related accident. (Finding of Fact 10).
I.
On review, the claimant contends the ALJ’s findings of fact are erroneous as a matter of law. First, the claimant asserts that Finding of Fact 17 demonstrates the ALJ erroneously required the claimant to present medical evidence that the worsening of condition was caused by the industrial injury. The claimant also asserts the ALJ was bound to accept the DIME physician’s finding that the claimant sustained a rotator cuff injury, and this injury caused the worsening. Finally, the claimant disputes the sufficiency of the evidence to support the ALJ’s finding that the claimant injured his right shoulder when he fell on December 30, 1998. We perceive no error.
When seeking to reopen based on a change in condition, the claimant must prove a change in the condition of the original compensable injury or a change in the claimant’s physical or mental condition which can be causally connected to the original injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). Because the power to reopen is discretionary, we may not interfere with the ALJ’s determination of the issue unless there has been fraud or a clear abuse of discretion Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The determination of which of two possible causes is responsible for a claimant’s disability and need for treatment is one of fact for determination by the ALJ. University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001); 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. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
We agree with the claimant there is no requirement that causation be proven by medical evidence, and that circumstantial evidence may be sufficient to permit a finding that a particular condition was caused by the industrial injury. See Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). However, it is also true that where medical evidence pertaining to causation is presented, it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
The claimant’s argument notwithstanding, we do not view Finding of Fact 17 as demonstrating the ALJ applied an erroneous rule of law by requiring the claimant to establish causation by medical evidence. Rather, read in the context of the entire order, the ALJ was evaluating the weight of the medical evidence and found the balance of the medical evidence does not support the claimant’s theory of the case. Although the ALJ could not require proof of causation by medical causation, she was free to weigh the presence or absence of medical evidence tending to support the claimant’s contention.
Neither did the ALJ err in failing to give sufficient weight to the DIME physician’s finding that the claimant suffered a rotator cuff injury resulting in permanent physical impairment. Section 8-42-107(8)(b)(III), C.R.S. 2001, and § 8-42-107 (8)(c), C.R.S. 2001, require that the DIME physician’s findings concerning MMI and the claimant’s medical impairment rating be treated as binding unless overcome by clear and convincing evidence. In Qual-Med v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), the court held a DIME physician’s finding that a component of the claimant’s overall medical impairment was caused by the industrial injury could not be set aside unless overcome by clear and convincing evidence. The court reached this conclusion because, “as a matter of diagnosis, the assessment of impairment requires a rating physician to identify and evaluate all losses and restrictions which result from the industrial injury.” Id. at 592.
However, a finding that all injury-related conditions are at MMI, or that a particular component of the claimant’s medical impairment was caused by the industrial injury, does not amount to a determination that any subsequent worsening of condition is causally related to the industrial injury. Indeed, the claimant bears the initial burden of proof to establish the worsening of condition was caused by the industrial injury. See Richards v. Industrial Claim Appeals Office, supra. Therefore, the reopening scenario is analogous to Faulkner v. Industrial Claim Appeals Office, supra, where the court held a DIME physician’s opinion concerning the cause of the claimant’s condition was not entitled to presumptive weight where the issue concerned “the threshold question whether the claimant had sustained any compensable injury arising out of and in the course of her employment.” 12 P.3d at 846.
Here, the “threshold issue” was whether the claimant’s disability and need for surgery was caused by the natural progression and worsening of the 1995 industrial injury, or by the independent progression of the claimant’s preexisting diabetes. The DIME physician did not resolve this issue, nor could the DIME physician have resolved it since it was not before him. Consequently, the finding of the DIME physician that the claimant sustained an impairing injury to the rotator of was in no way binding on the ALJ when considering the cause of the claimant’s worsened condition. See Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001).
Further, Finding of Fact 10 concerning the claimant’s fall in December 1998 constitutes a plausible inference drawn from the evidence. Although the report dated December 31, 1998, does not state the claimant “re-injured his rotator cuff,” it does note a history of rotator cuff problems and states the claimant had a fall on his right shoulder “yesterday” and experienced continued pain. Thus, Finding of Fact 10 constitutes a plausible interpretation of the evidence, and was certainly relevant to the question of whether the claimant’s need for surgery in May 1999 was the result of the 1995 injury or an intervening event.
However, even if Finding of Fact 10 were not supported by the evidence, any error would be harmless. The ALJ credited the opinion of Dr. Hughes that the cause of the need for surgery was the claimant’s diabetes, not the fall in December 1998. Therefore, Finding of Fact 10 amounts to mere surplusage and was not critical to the ALJ’s ultimate conclusion.
II.
The claimant next contends the ALJ erred as a matter of law because she failed to recognize that aggravation or acceleration of a preexisting condition results in a compensable event. The claimant reasons that because he suffered from diabetes before the 1995 industrial injury, the 1995 injury must be viewed as an aggravation or acceleration of a preexisting condition. We perceive no error.
We do not dispute the claimant’s legal argument that aggravation or acceleration of a preexisting condition constitutes a compensable event. Indeed, this principle is well established. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. 1990). However, as noted above, the issue here was whether or not the claimant’s worsened condition was caused by the 1995 industrial injury or some naturally occurring consequence of the injury. The mere fact that an industrial injury aggravates a preexisting condition does not mean that all subsequent disability and need for treatment is the result of the aggravation. Westerkamp v. Target Stores, supra.
Here, the ALJ found, as a matter of fact, that the worsened condition was a product of the independent progression of the claimant’s preexisting diabetes, and was unrelated to the 1995 injury. This finding was amply supported by the testimony of Dr. Hughes, which the ALJ found to be credible, and by the evidence the claimant’s left shoulder developed the same condition as the injured right shoulder. Under these circumstances, the ALJ did not misapply the law, and her findings concerning the cause of the claimant’s worsened condition were supported by substantial evidence. Therefore, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 2001, is affirmed.
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 9, 2002 to the following parties:
Fred Gutirrez, 1975 Highway 160 E. Alamosa, CO 81101
Ready Men Labor, Inc. d/b/a Ready Temporary Service, 1915 E. Colfax Ave., Denver, CO 80206-1301
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Joseph W. Ruppert, Esq., 725 N. Main St., P. O. Box 8087, Pueblo, CO 81008 (For Claimant)
Lisa Simons, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy