IN THE MATTER OF THE CLAIM OF ROBERT E. MILLER, Claimant, v. HARDING GLASS, Employer, and LEGION INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-247-941Industrial Claim Appeals Office.
September 28, 2000

ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Kozelka (ALJ Kozelka) which awarded the claimant medical benefits. The respondents argue the evidence does not support ALJ Kozelka’s determination that the need for treatment was proximately caused by a 1994 industrial injury, which is the subject of this claim. We set the order aside and remand for entry of a new order.

In 1994 the claimant sustained a compensable back injury while employed by respondent Harding Glass. The claimant was treated by several physicians, including Dr. Gromke who diagnosed a herniated disc at L5-S1. In February 1996, Dr. Woelfel Price placed the claimant at maximum medical improvement with a 17 percent whole person impairment rating.

In October 1996 the claimant was employed by Sbarro’s Pizza. The claimant threw a one and one-half pound ball of pizza dough into the air and experienced an increase in his back pain. The claimant was treated by Dr. Clark, but missed no time from work. In October 1998 the claimant experienced another increase in low back pain. He was again treated by Dr. Gromke who recommended an MRI because of a possible deterioration of the “previous disc.”

In February 1999 Dr. Gromke, in reply to a question from claimant’s counsel, opined that the claimant’s “worsening” medical condition was related to the “original work-related injury on September 12, 1994.” Dr. Woelfel Price originally agreed with Dr. Gromke’s opinion in a report dated March 22, 1999. However, Dr. Woelfel Price subsequently reviewed Dr. Clark’s notes and changed her opinion. In view of Dr. Clark’s notes, Dr. Woelfel Price opined the claimant sustained “a second work injury around October 19, 1996,” and that the 1996 injury was probably the cause of the claimant’s “current pain complaints.” (Dr. Woelfel Price, Report dated April 25, 1999).

The claimant sought compensation for the cost of the MRI and the medical treatment rendered by Dr. Gromke. The case originally went to hearing before ALJ Martinez on April 26, 1999. In an order dated June 11, 1999, ALJ Martinez found the claimant proved “that he sustained a worsening of his physical condition in October, 1998, which is causally related to his [1994] compensable injury.” The respondents appealed this order, but we dismissed the petition to review without prejudice because ALJ Martinez did not award or deny any benefits.

The case then proceeded to a hearing before ALJ Kozelka on February 25, 2000. In an order dated March 24, 2000, ALJ Kozelka found the disputed medical treatment “is reasonably related to, and necessitated by, the herniated disc condition arising from” the claimant’s 1994 industrial injury. In support, ALJ Kozelka relied on Dr. Gromke’s February 1999 opinion that the claimant’s need for treatment is causally related to the 1994 injury. ALJ Kozelka recognized the respondents’ argument that Dr. Gromke’s opinion is unreliable because it was rendered without knowledge of the 1996 pizza incident. However, ALJ Kozelka found the “evidence does not establish that” Dr. Gromke was unaware of the incident. (Finding of Fact 6). The ALJ also discredited Dr. Woelfel Price’s revised opinion because the ALJ found the April 22, 1999, report was not specific concerning “what aspect of Dr. Clark’s notes” gave rise to the “revised opinion,” and because Dr. Woelfel Price failed to re-examine the claimant prior to changing her opinion.

The respondents filed a timely petition to review ALJ Kozelka’s order. In connection with their appeal the respondents designated a transcript of the hearing held before ALJ Martinez, and a transcript of the hearing held before ALJ Kozelka. The record contains both transcripts.

On review, the respondents contend ALJ Kozelka erred in finding the claimant’s need for medical treatment is related to the 1994 industrial injury rather than the alleged intervening injury in October 1996. The respondents challenge, inter alia, Finding of Fact 6 in which ALJ Kozelka found the record does not establish that Dr. Gromke was unaware of the 1996 pizza incident prior to issuing his opinion on causation. Because we are unable to ascertain the basis of the ALJ Kozelka’s finding, we remand for entry of a new order.

The claimant was required to prove the need for treatment was proximately caused by the 1994 industrial injury. Section 8-41-301(1)(c), C.R.S. 2000; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The question of whether the claimant proved the requisite causal relationship is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Section 8-43-301(8), C.R.S. 2000; Wal-Mart Strores, Inc. v. Industrial Claims Office, supra. However, we may set aside the ALJ’s award if the findings are insufficient to support appellate review, or the ALJ has failed to resolve pertinent conflicts in the evidence. Section 8-43-301(8); Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).

Here, we are unable to ascertain the basis of the ALJ’s conclusory finding that the record does not establish Dr. Gromke was “unaware of the 1996 pizza throwing incident.” None of Dr. Gromke’s notes and reports make specific reference to the 1996 incident. More importantly, the claimant testified before ALJ Martinez that he did not mention the 1996 incident when he was examined by Dr. Gromke in 1998. (Transcript April 26, 1999, pp. 21-22). ALJ Kozelka does not mention the claimant’s testimony in her order, and certainly does not discredit it.

On remand, the ALJ shall reconsider Finding of Fact 6 and make explicit findings of fact determining whether or not Dr. Gromke was aware of the 1996 incident when he rendered his 1999 opinion on the issue of causation. In so doing, the ALJ shall determine whether or not the claimant was credible in testifying that he did not mention the 1996 incident to Dr. Gromke. Once the ALJ has made these determinations she shall reconsider the totality of the evidence, including the weight to be assigned the opinions of the medical experts, and enter a new order concerning the claimant’s entitlement to medical benefits. In reaching this result, we should not be understood as expressing any opinion concerning the proper resolution of the underlying factual issues. In light of this determination, we need not consider the other arguments raised by the respondents.

We recognize ALJ Kozelka may not have reviewed a transcript of the hearing before ALJ Martinez prior to entering the March 24 order. However, the transcript of the Martinez hearing was designated by the respondents, and was necessarily considered in ruling on the respondents’ petition to review. Section 8-43-301(3), C.R.S. 2000. We also note the claimant did not object to inclusion of the Martinez transcript as part of the record on appeal.

IT IS THEREFORE ORDERED that ALJ Kozelka’s order dated March 24, 2000, 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

Copies of this decision were mailed September 28, 2000 to the following parties:

Robert E. Miller, 3306 S. Highland, Clifton, CO 81520

Harding Glass, One Logan Square, Philadelphia, PA 19103

Legion Insurance Co., Amy Gerelick, Gallagher Bassett Services, Inc., 7925 E. Prentice Ave. #305, Englewood, CO 80111

Lauretta Martin, Esq., P.O. Box 4859, Grand Junction, CO 81502, (For Claimant)

James Clifton, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)

BY: A. Pendroy