W.C. No. 4-550-562 4-553-606 4-553-608Industrial Claim Appeals Office.
November 4, 2003
FINAL ORDER
In these consolidated workers’ compensation claims respondents Industrial Systems, Inc. (employer) and its insurer, St. Paul Fire and Marine Insurance Co. (collectively St. Paul respondents), seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant sustained a compensable injury on April 1, 1998, but did not sustain separately compensable injuries in December 2001 and June 2002. The St. Paul respondents also contest the ALJ’s award of temporary total disability (TTD) and medical benefits and a finding of fact concerning the cause of the claimant’s torn meniscus. We affirm the dismissal of the claims for the December 2001 and June 2002 claims, set aside the award of TTD benefits, and set the order aside and remand for entry of a new order concerning the cause of the claimant’s torn meniscus.
The ALJ found the claimant injured his right knee of April 1, 1998, when he struck it with a hammer just below the patella. At this time the employer was insured by St. Paul Fire and Marine Insurance Co. The treating physician diagnosed the claimant with “right patellar tendon hematoma versus interstitial edema,” and prescribed conservative measures. The treating physician placed the claimant that maximum medical improvement (MMI) on May 26, 1998, with no evidence of permanent impairment.
The ALJ further found that the claimant left work before completing his shift on April 2, 1998, was totally disabled from working on April 3, 6, and 7, and returned to modified duties with reduced hours on April 8, 1998. The claimant continued working reduced hours through at least April 24, 1998.
On December 18, 2001, the claimant experienced what the ALJ termed an exacerbation of the right knee condition while climbing onto a forklift at work. An MRI revealed an “old patellar tendon tear.” The treating physician opined that claimant was not suffering from an “acute injury” and recommended continuation of conservative care including physical therapy. The physical therapist described claimant’s knee condition as “chronic.” The claimant sustained a second exacerbation of his knee condition on June 16, 2002, when he stood up from kneeling position at work. In addition to the claim for the April 1998 injury, the claimant filed separate claims for the December 2001 and June 2002 incidents. At the time of the December and June exacerbations the employer was insured by respondent Pinnacol Assurance.
Relying principally on the testimony of Dr. Winkler, ALJ found the claimant sustained “significant injury to his right knee on April 1, 1998, injuring his patellar tendon, and likely causing injury to his meniscus tendon [sic], which then naturally worsened over time as a compensable consequence of the initial injury.” The ALJ determined that the April 1 injury “incompletely healed” which predisposed the claimant to additional injury. Thus, the ALJ was unpersuaded that the claimant sustained separately compensable injuries in December 2001 and June 2002, and dismissed the claims for those injuries. The ALJ also awarded TTD benefits for April 3, 6 and 7, 1998, and reasonable “medical, surgical and hospital expenses” for the 1998 injury.
I.
The St. Paul respondents first contend the ALJ erred in dismissing the claims for the December 2001 and June 2002 injuries. Essentially, the St. Paul respondents argue the evidence compelled the ALJ to find these incidents represent separately compensable injuries for which Pinnacol is liable as the employer’s insurer. In support of this contention the St. Paul respondents point out the claimant returned to “regular duty” and did not seek medical treatment for his knee condition for three and one-half years after being placed that MMI on May 26, 1998. The St. Paul respondents further contend the December 2001 and June 2002 incidents constitute intervening causes of the claimant’s need for medical treatment. We reject these arguments.
It is well-established in Colorado that if an industrial injury leaves the body in a weakened condition, and the weakened condition plays a causative role in a subsequent injury, the subsequent injury is a compensable consequence of the industrial injury. The question is whether the subsequent injury was naturally and proximately caused by the weakened condition. If so, a sufficient causal relationship is established and the subsequent injury is compensable. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). However, subsequent injuries are not compensable if they are the direct result of an independent intervening cause. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002).
The question of whether a subsequent injury is a natural and proximate result of the industrial injury or an efficient intervening cause is one of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. 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. In this regard, the weight and credibility to be afforded expert medical opinion on the issue of causation is a matter from the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The St. Paul respondents’ arguments notwithstanding, the record supports the ALJ’s finding that the incidents in December 2001 and June 2002 were the natural and proximate result of the April 1998 injury, not new and separately compensable injuries. The entire tenor of Dr. Winkler’s testimony was that the claimant injured the patellar tendon in April 1998, which led naturally to the formation of scar tissue. The scar tissue weakened the tendon, which rendered the claimant susceptible to additional injury and exacerbations when the claimant’s knee was subjected to stresses which would not have injured or evoked symptoms in a healthy knee. (Tr. Pp. 51-52; Winkler Depo. Pp. 19-21). Further, the claimant’s own testimony establishes that he experienced continuing knee pain after being placed at MMI in May 1998, and that he was no longer able to kneel on the right knee. (Tr. Pp. 16; 26). The fact that some evidence in the record, including that cited by the St. Paul respondents, might support a contrary determination affords no basis for relief on appeal See Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003).
II.
The St. Paul respondents next contend the ALJ misapplied the law in awarding TTD benefits for three days. The claimant’s brief does not address this argument. We agree the ALJ misapplied the law.
Section 8-42-105(1), C.R.S. 2003, provides that in case of TTD “of more than three regular working days’ duration, the employee shall receive sixty-six and two-thirds percent of the employee’s average weekly wage so long as the disability is total.” Thus, in order to be eligible for TTD benefits the claimant must establish the total disability lasted more than three days. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The period of TTD is measured from the day after the employee leaves work as a result of the injury. See Ralston Purina-Keystone v. Lowry, 821 P.2d 910 (Colo.App. 1991). Moreover, TTD terminates when the claimant returns to modified employment, although the claimant may remain eligible for temporary partial disability benefits if he continues to sustain a wage loss. Section 8-42-105(3)(b), C.R.S. 2003; §8-42-106(1), C.R.S. 2003.
Here, the ALJ determined the claimant was totally disabled for three regular working days after he left work on April 2. However, on the fourth day, April 8, the claimant returned to modified work, albeit for fewer hours than he worked before the injury. Under these circumstances, the claimant has not established that he was totally disabled for more than three regular working days as required by § 8-42-105, and the award of TTD benefits must be set aside. Of course, we should not be understood as holding the claimant is precluded from receiving TTD benefits if, in the future, he establishes TTD in excess of three regular working days.
III.
The St. Paul respondents also dispute Finding of Fact 9 insofar as it states the claimant’s April 1 injury likely caused injury to the “meniscus tendon.” (We note that at page 48 of the transcript Dr. Winkler described the meniscus as cartilage, not a tendon.) Apparently, this finding authorizes payment of medical expenses for treatment of the torn meniscus, although it is not clear to us that any such treatment has yet been provided. Assuming, arguendo, that it has, we set aside the finding and remand for entry of a new order on this issue.
As we have held, causation is an issue of fact for determination by the ALJ, and the ALJ’s finding must be upheld if supported by substantial evidence in the record. Further, causation need not be proven by medical evidence. See Rockwell International v. Turnbull, 802 P.2d 1182, 1183
(Colo.App. 1990). However, we may set aside an order to the extent the findings are insufficient to support appellate review. Although the ALJ need not enter findings concerning every piece of evidence, the findings must be sufficient to indicate the factual and legal basis of the ALJ’s determination, and purely conclusory findings are inadequate. Section 8-43-301(8); Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761
(1969).
Here, the ALJ appears to have found, “based on all the medical records” and the “deposition of Dr. Winkler,” that the tear of the meniscus was caused by the April 1 injury. (Finding of Fact 9). However, this finding is directly contrary to the testimony of Dr. Winkler who opined the torn meniscus was not the result of the injury. (Tr. P. 53; Deposition P. 6). As the ALJ recognized, other physicians shared Dr. Winkler’s view that the tear was not caused by the injury. Thus, in the absence of more specific findings, it is impossible for us to ascertain the basis of the ALJ’s conclusion that the April 1 injury caused the tear. While this record might support such an inference, we cannot determine whether the ALJ relied on substantial evidence to support the conclusion because the cited evidence is contrary to the result.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 14, 2003, is affirmed insofar as it denied the claims for the December 2001 and June 2002 injuries, and awarded medical benefits for treatment of the injury of April 1, 1998.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as it awarded TTD benefits for three days.
IT IS FURTHER ORDERED that Finding of Fact 9 is set aside to the extent it states the torn meniscus was caused by the injury of April 1, 1998. On this issue the matter is remanded for entry of a new order containing specific findings of fact and conclusions of law. A new hearing is not authorized, and the matter shall be decided on the existing record.
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on November 4, 2003 by A. Hurtado.
Douglas Schwindt, P. O. Box 528, Delta, CO 81416
Larin Jones, Industrial Systems, Inc., P. O. Box 532, Delta, CO 81416
St. Paul Fire Marine Insurance Co., c/o Michelle Jensen, St. Paul Insurance Company, P.O. Box 64907, St. Paul, MN 55164-0907
Legal Department, Pinnacol Assurance — Interagency Mail David B. Mueller, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Michael J. Barbo, Esq., 2000 S. Colorado Blvd., #2-450, Denver, CO 80222-7910 (For Respondents Industrial Systems, Inc. and St. Paul Fire Marine Insurance Co.)
T. Paul Krueger, II, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Industrial Systems, Inc. and Pinnacol Assurance)