W.C. Nos. 3-998-279 4-297-625Industrial Claim Appeals Office.
June 26, 2000
ORDER OF REMAND
Hertz Corporation (Hertz) and its insurer, Reliance Insurance Company (collectively the Reliance respondents) seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay permanent total disability benefits. We set aside the order and remand the matter for a new order.
On October 5, 1990, the claimant suffered a work-related amputation injury to his left index finger. The Reliance respondents admitted liability. The claimant subsequently developed Reflex Sympathetic Dystrophy (RSD). Dr. Hall placed the claimant at maximum medical improvement on January 16, 1992, with permanent medical impairment. Dr. Hall also imposed permanent restrictions concerning use of the left hand. In 1994, the claimant began working for New CC Inc. (New CC). In 1995, the claimant suffered severe brain damage as a result of medical malpractice for treatment of the RSD.
It is undisputed the claimant is permanently totally disabled as a result of the medical malpractice. However, the parties dispute the cause of the need for the RSD treatment which led to the medical malpractice. The Reliance respondents contend the claimant’s pre-existing RSD was aggravated by his work at New CC and that the aggravation was the proximate cause of the need for the RSD treatment. Consequently, they argue New CC is liable for the claimant’s permanent total disability.
However, the ALJ found the claimant’s employment with New CC did not cause any worsening of his pre-existing RSD, which had resulted from the original injury. Among other findings made in support of that determination, the ALJ found that “no physician told [the claimant] to stop working at New CC.” (Finding of Fact 4). Therefore, the ALJ dismissed the claim against New CC and held the Reliance respondents solely responsible for the claimant’s permanent total disability benefits. The ALJ also ordered the Reliance respondents to provide additional medical benefits.
On review, the Reliance respondents contend, inter alia, that the record fails to support the ALJ’s finding that “no physician told [the claimant] to stop working at New CC.” The Reliance respondents contend there is substantial evidence that Dr. Barton cautioned the claimant to stop working at New CC.
New CC and its insurer, the Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance (collectively the Pinnacol respondents) concede that the record contains some evidence Dr. Barton did not approve of the claimant’s work for New CC on a construction crew. However, the Pinnacol respondents argue there is no evidence Dr. Barton or any other physician told claimant to “stop working entirely” at New CC. Therefore, the Pinnacol respondents contend that Dr. Barton’s records are not inconsistent with Finding of Fact 4.
The Pinnacol respondents’ argument suggests that the ALJ made a distinction between circumstances where the treating physician disapproves of the patient’s work activities and the physician orders the patient to quit the employment. We are not persuaded.
A treating physician generally has no authority to stop the claimant from working. A treating physician only makes recommendations which the patient is free to accept or reject See § 8-42-105(3), C.R.S. 1999; McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). Thus, we perceive no significant distinction between a physician’s disapproval of a claimant’s work activities and a recommendation that the claimant obtain other employment.
The record shows that in a clinic note dated November 9, 1994, Dr. Barton opined that the claimant’s construction work is “not the sort of job that I would have him doing.” Similarly, on November 11, 1994, Dr. Barton opined that the construction work “is not what I would say to be the best kinds of work for an individual to be doing with [the claimant’s] condition.” On January 27, 1995, Dr. Barton reported that the claimant was still performing construction work in high, cold altitudes, and “would be better off if he had a job where there would be less physical stress.” He added his fear that the claimant’s use of pain medication to continue working could result in a very serious injury. Further, on March 23, 1995, Dr. Barton “again cautioned [the claimant] to try to find some other line of work.” Accordingly, the ALJ’s finding that “no physician told the claimant to stop working at New CC” reflects an erroneous view of the state of the evidence.
A finding of “no” evidence may not be construed as a finding of no credible evidence. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988). Moreover, we cannot say the ALJ’s erroneous finding concerning the state of the evidence was harmless. It appears the ALJ relied on that finding in determining that the New CC employment was not shown to have caused any worsening of the claimant’s RSD. Therefore, we must remand the matter for a new order with findings which reflect accurate consideration of the evidence in the record. See Hall v. Industrial Claim Appeals Office, supra; § 8-43-301(8), C.R.S. 1999.
Our remand should not be read as expressing any opinion concerning the credibility or probative weight of the evidence. Those are matters for resolution by the ALJ as the fact finder Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
In view of our disposition it is premature to consider the Reliance respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 17, 1998, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed June 26, 2000
to the following parties:
Robert G. Rodriguez, Lori L. Rodriguez, 17504 E. Progress Dr., Aurora, CO 80015
Hertz Corporation, Presidium, Inc., P. O. Box 821028, Dallas, TX 75382-1038
New CC, Inc., 1100 E. 64th Ave., Denver, CO 80229-7210
John Curley, Reliance Insurance Company, 77 Water St., New York, N Y 10005
Jody Nelson, CNA Insurance Company, P. O. Box 17369 T. A., Denver, CO 80217
Legal Department, Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail
Richard J. Lesch, Esq., 1120 Lincoln St., #1000, Denver, CO 80203 (For Claimant)
Margaret Keck, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents Hertz Corporation and Reliance Insurance Company)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents New CC, Inc. and CNA Insurance Company)
Douglas A. Thomas, Esq. and Mark C. Willis, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents New CC, Inc. and Colorado Compensation Insurance Authority dba Pinnacol Assurance)
Andy Griffith, Cascade Litigation Management, Inc., P. O. Box 6539, Bend, OR 97708-6539
Continental Casualty Insurance Company, P.O. Box 17369, Denver, CO 80217
BY: A. Pendroy