W.C. No. 4-325-149Industrial Claim Appeals Office.
August 29, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which denied additional medical benefits. The claimant contends the ALJ erred in finding that an intervening event severed the causal connection between the industrial injury and the need for medical treatment. We disagree, and therefore affirm the ALJ’s order.
The claimant suffered an admitted low back injury in 1996. As a result of the injury the claimant underwent an anterior spinal fusion with AK implants and a posterior fusion with translaminar facet screw implants by Dr. Duke and Dr. McDonald. On April 21, 2000, Dr. Olsen reported the claimant continued to report some symptoms but was happy with the outcome of the surgery. Dr. Olsen placed the claimant at maximum medical improvement (MMI) and recommended maintenance treatment consisting of an exercise program, refills of prescription medication, and two to three physician follow-up visits for medication management.
On November 30, 2000, the claimant was involved in a motor vehicle accident. The ALJ found the claimant’s “low back pain was substantially worse after the motor vehicle accident.” (Finding of Fact 6). In October 2001 the claimant had surgery to remove the facet screws. Thereafter, Dr. Donaldson noted the claimant continued to experience incapacitating back pain and suggested the claimant was a candidate for additional fusion surgery.
In a report dated September 7, 2001, Dr. Olsen opined that additional surgery had not been considered until the 2000 motor vehicle accident exacerbated the claimant’s symptoms. Consequently, Dr. Olsen attributed the claimant need for further surgery to the motor vehicle accident.
Crediting the opinions of Dr. Olsen, the ALJ found the motor vehicle accident constituted an efficient intervening event which severed the causal connection between the industrial injury and the need for additional treatment including surgery. Therefore, the ALJ denied the claim for further medical treatment.
Under § 8-42-101(1)(a), C.R.S. 2001, respondents are liable for medical treatment that “may reasonably be needed at the time of the injury. . . and thereafter during the disability to cure and relieve the employee from the effects of the injury.” That includes furnishing treatment for conditions due to a natural development of the industrial injury. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188
(Colo.App. 2002). In contrast, no liability exists when a later accident occurs as the direct result of an intervening cause. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934). 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).
The determination of whether the need for medical treatment is the result of an independent intervening cause is a question of fact for resolution by the ALJ. Owens v. Industrial Claim Appeals Office, supra. We must uphold the ALJ’s factual findings which are supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Substantial evidence is that quantum of probative evidence which a rational fact- finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
The claimant’s arguments notwithstanding, there is substantial evidence in Dr. Olsen’s medical reports to support the ALJ’s finding that the impact of the motor vehicle accident was sufficient to cause the need for additional surgery. In assessing Dr. Olsen’s opinions the ALJ was free to consider whether the opinions were tainted by a desire to avoid any suggestion of medical malpractice during the initial fusion surgery. However, the ALJ was not required to reject Dr. Olsen’s opinions on that basis, and we have no authority to substitute our judgment for that of the ALJ concerning the weight to be afforded Dr. Olsen’s opinions.
Although Dr. Donaldson recommended additional surgery, the record contains evidence Dr. Donaldson was unable to render an opinion about whether the claimant’s need for additional surgery was caused by the motor vehicle accident or the industrial injury. (Donaldson March 4, 2002 report). Consequently, the record supports the ALJ’s finding that Dr. Olsen’s opinion on causation was unrefuted.
Finally, we are not persuaded the record compelled the ALJ to find the claimant’s disability was due to a natural progression of the effects of the initial fusion surgery. The claimant testified he had continuing back pain after the initial fusion surgery. However, he admitted his pain worsened after the motor vehicle accident. (Tr. p. 28).
At the time of MMI, Dr. Olsen imposed lifting restrictions, but did not preclude the claimant from working. Further, Dr. Olsen’s report dated April 21, 2000, indicated the claimant was not working but was looking for employment. Under these circumstances, the ALJ could reasonably infer that the claimant’s worsened condition was a consequence of the intervening motor vehicle accident and not the initial fusion surgery. Moreover, the ALJ’s determination supports the denial of additional medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 24, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 2001. 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 29, 2002 to the following parties:
Rafael Vargas, 3744 Lafayette, Denver, CO 80205 UPS, 5020 Ivy St., Commerce City, CO 80022
Sandy Parrot, Claims Adjustor, Liberty Mutual Fire Insurance Company, National Market
W.C. Department, P. O. Box 168208, Irving, TX 75016-8208
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
John M. Connell, Esq. and Susan A. Kraemer, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Respondents)
BY: A. Hurtado