W.C. No. 4-272-765Industrial Claim Appeals Office.
April 27, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded temporary total disability and medical benefits beyond July 15, 1996. We affirm.
The ALJ’s extensive findings of fact may be summarized as follows. The claimant suffered an admitted industrial injury to his neck. The primary treating physician, Dr. Gerber, determined the claimant to be at maximum medical improvement (MMI) on July 16, 1996, and the respondents terminated temporary disability benefits in accordance with Dr. Gerber’s determination of MMI.
Thereafter, the claimant continued to treat with Dr. Gerber. In early September 1996 the claimant reported psychological problems which he attributed to the industrial injury. As a result, Dr. Gerber referred the claimant to Dr. Robinson, who is a psychologist. The claimant began treating with Dr. Robinson on September 16, 1996. Dr. Robinson diagnosed a “pain disorder associated with both psychological factors and a general medical condition,” related to the industrial injury.
In a report on January 9, 1997 (mistakenly dated January 9, 1996), Dr. Gerber opined that the claimant’s “ongoing problems, both physical and psychological, have been caused by and are directly related” to the industrial injury. Dr. Gerber also opined that the claimant is “not stable” and that the prior determination of MMI was “premature.” Under these circumstances, the ALJ found that the Dr. Gerber had rescinded his prior determination of MMI. Further, the ALJ found that the claimant has not been released to return to his regular employment. Therefore, the ALJ determined that the claimant’s entitlement to temporary disability benefits did not terminate July 16, 1996.
In so doing, the ALJ rejected the respondents’ contention that the claimant’s ongoing disability is attributable to “intervening” personal stressors. Rather, the ALJ found that the claimant’s ongoing disability was the natural and proximate consequence of the industrial injury. Moreover, the ALJ determined that even if the claimant’s personal stressors constituted an intervening event, the industrial injury contributed “in some degree” to the claimant’s ongoing temporary disability. Therefore, the ALJ ordered the respondents to reinstate temporary disability and medical benefits effective July 16, 1996.
On review, the respondents contend that the ALJ’s award of additional temporary disability and medical benefits is not supported by substantial evidence and the applicable law. The respondents contend that “overwhelming” lay and medical evidence compels a finding that the claimant’s ongoing temporary disability is the result of an “intervening event” and not the industrial injury. We disagree.
Admittedly, an employer is only liable for the “direct and natural” consequences of a work-related injury, and the occurrence of an independent, intervening injury may sever the causal connection between the industrial injury and the claimant’s condition. See Travelers Insurance Co. v. Savio, 706 P.2d 1258
(Colo. 1985). An independent intervening injury does not necessarily have to be so severe that it would cause injury in an individual without a pre-existing weakness. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the intervening event does not sever the causal connection between the injury and the claimant’s condition unless the claimant’s disability is triggered by the intervening event. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); 1 Larson, Workers’ Compensation Law, § 13.11(a) (1997).
The existence of an “intervening event” is an affirmative defense to the respondents’ liability. Consequently, it is the respondents’ burden to prove that the claimant’s condition is attributable to a subsequent intervening injury and not the industrial injury. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983) (burden of proof determined by which party would be successful if no evidence was presented; burden of proof is then placed on the adverse party).
Whether the respondents have sustained their burden to prove that the claimant’s disability was triggered by an intervening event is a question of fact for resolution by the ALJ. City of Aurora v. Dortch, 799 P.2d 462 (Colo.App. 1990). Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Here, the ALJ explicitly recognized that the claimant experienced some personal stressors, which included his daughter being caught shoplifting, a marital separation, litigation of an employment discrimination claim, and the death of his brother. However, the ALJ was not persuaded that the personal stressors triggered the claimant’s disability and need for psychological treatment. Instead, the ALJ reasonably inferred from the fact that the claimant did not mention “domestic troubles” when he initially complained of psychological problems, that the claimant’s need for psychological treatment was due to the industrial injury. (Finding of Fact 12). The ALJ also noted that the claimant’s personal stressors did not occur during the critical period that the claimant complained of psychological problems. (Finding of Fact 18). For example, the record contains evidence that the claimant’s employment discrimination trial occurred several months before Dr. Gerber referred the claimant to Dr. Robinson, and the other personal stressors did not occur until after the claimant had begun to treat with Dr. Robinson.
Contrary to the respondents’ argument, the ALJ’s findings are supported by substantial evidence in the claimant’s testimony, and the medical reports of Dr. Robinson and Dr. Gerber. Accordingly, we necessarily reject the respondents’ contention that Dr. Gerber’s testimony must be interpreted as reflecting an opinion that the claimant’s disability is due to personal stressors.
The ALJ expressly found inconsistencies between Dr. Gerber’s deposition testimony and his medical reports. Within his prerogative, the ALJ resolved the inconsistencies by crediting Dr. Gerber’s report of January 9, 1997, and that report amply supports the ALJ’s pertinent findings. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). For example, Dr. Gerber opined that “the vast majority if not all” of the claimant’s psychological problems were caused by a reaction to the industrial injury. Dr. Gerber also stated:
“[T]here have been no intervening events that I am aware of nor would I expect there to be any based on the information available to me.”
The mere existence of contrary evidence in Dr. Gerber’s deposition does not afford us grounds to alter the ALJ’s findings. See F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
In any case, even if the record compelled the finding of an “intervening event,” we perceive no reversible error in the award of benefits. An intervening event is not a permanent bar to temporary disability benefits, where the claimant establishes that the industrial injury contributed “to some degree” to the subsequent temporary wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). This is true because the claimant is not required to prove that the industrial injury is the “sole” cause of his wage loss to recover temporary disability benefits See also Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
Here, the claimant was temporarily disabled from performing his regular employment as a result of the neck injury. It follows that even if the claimant’s psychological disability was due to the personal stressors, the industrial injury necessarily contributed “to some degree” to the claimant’s temporary disability after July 16, 1996. Horton v. Industrial Claim Appeals Office, supra. Therefore, the ALJ did not err in awarding additional temporary disability and medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 10, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 27, 1998 to the following parties:
Thomas D. Tiffany, 7470 Dakin St., #I-204, Denver, CO 80221
April Manzanares, Wal-Mart Stores, Inc., 300 Waneka Parkway, Lafayette, CO 80026
Jon Causseaux, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006-8458
John Taussig, Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Richard A. Bovarnick, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
BY: _______________________