W.C. No. 4-421-438Industrial Claim Appeals Office.
August 25, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) which awarded the claimant temporary total disability benefits and medical benefits. The respondents contend the award of temporary disability benefits was improper because the claimant was released to regular employment, and because the wage loss was not causally related to the industrial injury. The respondents further contend the award of medical benefits was improper because the providers were not authorized. We reverse the award of medical benefits and affirm the award of temporary disability benefits.
On February 10, 1999, the claimant sustained a compensable injury to her left shoulder and chest when she fell at work. The authorized treating physician diagnosed a contusion and strain of the left shoulder. He also restricted the claimant from working more than six hours on February 13 and 14, but opined she was able to return to her regular work as a receptionist on February 15. Further, the treating physician opined the claimant should limit herself to sedentary work and limit use of her left arm. (Kluck Depo. p. 10; report dated April 22, 1999).
The claimant returned to work until May 6, 1999, when she was terminated for unsatisfactory performance. The claimant testified that following her return to work she experienced increased shoulder pain, muscle spasms, and migraine headaches. The claimant stated that these symptoms rendered her unable to work following the May 6 discharge. (Tr. pp. 22-23). On July 21, 1999, the claimant was examined by Dr. Ferlic who diagnosed a contusion and strain of the shoulder, recommended an MRI and physical therapy, and prescribed medication for muscle spasms.
The ALJ, crediting the claimant’s testimony and the medical report of Dr. Ferlic, found the claimant’s condition worsened after the May 6 discharge from employment. (Finding of Fact 10, Conclusion of Law 6). The ALJ further found the claimant’s inability to work after the discharge was “due in part to her industrial injury.” Consequently, the ALJ awarded temporary total disability benefits commencing May 6, 1999. The ALJ also awarded medical benefits for treatment by Dr. Ferlic and Dr. Haas, a chiropractor.
I.
On review, the respondents contend the award of temporary total disability benefits was improper because the treating physician released the claimant to regular employment. Relying o Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), the respondents argue the ALJ was not free to disregard the treating physician’s opinion concerning the claimant’s ability to perform regular employment. Under the circumstances, we find no error.
Section 8-42-105(3)(c), C.R.S. 1999, provides that temporary total disability benefits continue until the “attending physician gives the employee a written release to return to regular employment.” As the respondents argue, it has been held the ALJ is not free to disregard the opinion of the attending physician concerning the claimant’s ability to perform regular employment unless the attending physician’s opinion is subject to conflicting inferences, or there is a conflict among multiple attending physicians. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Burns v. Robinson Dairy, Inc., supra.
However, as the claimant points out, we have previously held that a termination of benefits pursuant to § 8-42-105(3)(c) cannot be construed as a limitation on the ALJ’s power to reopen a claim and award additional temporary disability benefits where there is a subsequent worsening of condition. McDowell v. Schlage Lock Co., W.C. No. 4-255-819 (September 24, 1998). The Court of Appeals reached a similar conclusion in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), where it held a claimant may reopen and receive additional temporary total disability benefits after maximum medical improvement provided the claimant establishes increased physical restrictions resulting in an additional temporary loss of wages.
Although this claim was never formally closed by a final admission or by order, we see no basis for holding that a claimant who establishes a worsened condition following a release to regular employment is prohibited from reestablishing a right to temporary total disability benefits in the same manner as if the claim had been formally closed. This is true because proof of a worsened condition does not constitute an attack on the attending physician’s opinion that the claimant was previously able to perform regular employment. Further, there is no requirement that the claimant produce medical evidence to establish that the worsened condition caused increased disability. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
Here, the claimant’s testimony, as corroborated by the medical report of Dr. Ferlic, establishes the claimant’s physical condition worsened after she was terminated from employment on May 6, 1999. Further, the claimant’s testimony supports the ALJ’s finding that the worsened condition was disabling because it prevented her from working. Because the ALJ’s order is supported by substantial evidence in the record, it must be upheld on review. Section 8-43-301(8), C.R.S. 1999.
The respondents further contend the ALJ failed to determine whether the claimant’s disability was the result of an efficient intervening cause. In support of this proposition, the respondents point to the claimant’s testimony that lifting her infant daughter caused increased shoulder pain. (Tr. p. 23). We perceive no error.
As the claimant argues, there is no requirement that the claimant’s temporary disability be solely caused by the work-related injury. Rather, it is sufficient if the wage loss is to “some degree” caused by the industrial injury. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996) But see § 8-42-105(4), C.R.S. 1999 (applicable to injuries occurring on or after July 1, 1999).
The respondents’ assertion notwithstanding, the ALJ explicitly rejected the notion that any injury caused by the claimant’s lifting of her child was the sole cause of the claimant’s worsened condition and subsequent loss of wages. (Conclusion of Law 6). To the contrary, the ALJ found that to some degree the industrial injury was the cause of the worsened condition and subsequent wage loss. This is a plausible interpretation of the evidence, particularly since Dr. Ferlic’s diagnosis was essentially the same as that initially made by the treating physician. Although the evidence might have been interpreted differently, we decline to interfere with the ALJ’s finding of causation since it is supported by substantial evidence in the record. F. R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1995).
II.
The respondents argue the medical care provided by Dr. Ferlic and the chiropractor is not compensable because these providers were not authorized. The claimant has conceded the point on review and, therefore, we need not specifically address it.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 1999, is reversed insofar as it ordered the respondents to pay for treatment provided by Dr. Ferlic and Dr. Haas.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise 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. 1999. 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 August 25, 2000 to the following parties:
Joleen Rivera, 634 W. 22nd St., Apt. 1, San Pedro, CA 90731
Mike Cornicle, Ames Construction, 18450 E. 28th Ave., Aurora, CO 80011
Larry Peluso, St. Paul Fire Marine Insurance, P. O. Box 441565, Aurora, CO 80044-1565
Jennifer Bisset, Esq., 1120 Lincoln St., #1001, Denver, CO 80203 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy