W.C. No. 3-113-179Industrial Claim Appeals Office.
May 28, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), insofar as it denied additional temporary disability benefits and medical benefits attributable to a worsening of condition. The respondents seek review of the order insofar as it requires them to pay permanent partial disability benefits based on a medical impairment of eighteen percent of the whole person. We affirm.
The ALJ found that the claimant sustained a compensable back injury on April 28, 1994, while employed by the Mesa County Sheriff’s Office (Mesa County). The claimant’s treating physician, Dr. Madison, determined the claimant reached maximum medical improvement (MMI) from this injury on June 15, 1994.
Dr. Madison, who apparently was not Level II accredited, referred the claimant to Dr. Patterson for a permanent impairment rating. On October 7, 1994, Dr. Patterson issued a report opining the claimant had an eighteen percent whole person impairment based on a specific disorder of the spine and lost range of motion. On October 27, 1994, the respondents filed a Final Admission of Liability admitting for medical benefits, temporary disability benefits, and permanent partial disability benefits based on Dr. Patterson’s eighteen percent whole person impairment rating.
The claimant did not file an objection to the October 27 Final Admission. However, the respondents’ insurance adjuster filed an “objection” to the insurer’s own admission on November 7, 1994. This objection was predicated on a letter from Dr. Madison indicating his strong disagreement with the impairment rating issued by Dr. Patterson.
The respondents then requested a Division-sponsored independent medical examination (IME) on the issue of permanent medical impairment. The IME was performed by Dr. Scott, who issued a report on January 30, 1995, opining that the claimant had a five percent whole person impairment. On February 8, 1995, the respondents filed a second Final Admission of Liability admitting for permanent partial disability benefits based on the five percent rating. The claimant objected to this final admission.
The ALJ found the claimant continued to work for Mesa County until August 1995, when she moved to another state to pursue business opportunities. The claimant testified that while she was away, her condition worsened to the extent that she was bedridden in November 1995, and lost the use of her legs in January 1996.
After the claimant returned to Colorado in March 1996, the respondents authorized her to see Dr. Cabanilla. Dr. Cabanilla opined the claimant’s condition had worsened to the point that it included a disc herniation at the L4-5 level. Dr. Cabanilla was also of the opinion that this worsening was attributable to the 1994 industrial injury. In May 1997, Dr. Cabanilla rated the claimant as having a fourteen percent whole person impairment, and recommended ongoing treatment to include medications and visits to the doctor three to five times per year. Dr. Cabanilla also indicated the claimant might need surgery in the future.
The ALJ denied the claimant’s request for temporary disability benefits commencing May 20, 1996 and continuing until May 7, 1997. The ALJ concluded that, if the claimant’s condition had worsened, she failed to prove the worsening was attributable to the April 1994 industrial injury. In support of this conclusion, the ALJ noted that, after being discharged by Dr. Madison, the claimant did not seek medical treatment for nearly two years. This was true despite the claimant’s assertion that she was bedridden and had lost the use of her legs by early 1996. The ALJ also noted that, after being released by Dr. Madison, the claimant performed her preinjury employment for more than one year before quitting to move to another state. The ALJ also denied the claim for additional medical benefits.
In addition, the ALJ rejected the respondents’ argument that they are liable for medical impairment benefits based on the IME physician’s five percent impairment rating, rather than the eighteen percent rating admitted in the October 27, 1994 Final Admission of Liability. In support, the ALJ stated the respondents failed to demonstrate any “legal basis for what is essentially a withdrawal of their own admission and their actions subsequent to the filing of the final admission of liability in redetermining the claimant’s permanent physical impairment are invalid.” Thus, the ALJ required the respondents to pay medical impairment benefits in accordance with the admitted impairment of eighteen percent of the whole person.
I.
On review, the claimant contends the ALJ erred in finding that she failed to establish a worsening of condition. The claimant asserts that the ALJ was required to give “special deference” to Dr. Cabanilla’s opinion concerning the cause of the worsening. Further, the claimant asserts there is no evidence of any intervening event that could have caused the injury. We disagree with the claimant’s arguments.
The question of whether an industrial injury is responsible for a subsequent worsening of condition is generally one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, determinations involving the weight and credibility of evidence pertaining to causation, including medical evidence, are within the ALJ’s purview as the finder of fact. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Because the issue is factual, we must uphold the ALJ’s determination that the claimant’s worsened condition was not attributable to the industrial injury if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
The claimant erroneously cites our decision in Hooper v. Powermark Case Corp., W.C. No. 4-176-990 (January 30, 1996), for the proposition that the ALJ was required to give “special deference” to Dr. Cabanilla’s opinion concerning causation. I Hooper, we merely noted that certain provisions of the Act, including § 8-42-105(3), C.R.S. 1997, and § 8-42-107(8)(b)-(c), C.R.S. 1997, require that the authorized treating physician’s opinions be given special weight on certain issues. These issues include whether the claimant is released to return to regular work, the date of MMI, and the initial impairment rating. E.g., Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
However, the issue in this case concerns the cause of the claimant’s worsened condition. No provision of the statute requires the ALJ to give special weight to the opinion of the treating physician with respect to initial questions of causation See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). This is not a case in which a party was seeking to challenge the treating physician’s initial determination of MMI, but rather a case involving an alleged worsening subsequent to MMI. Cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) Donahoe v. ENT Federal Credit Union, W.C. No. 4-171-210
(September 15, 1995); Patla v. Bethesda Care Center, W.C. No. 4-150-170 (July 20, 1995).
Here, substantial evidence supports the ALJ’s finding that the claimant failed to prove a causal relationship between her disability and need for treatment, and the industrial injury of April 1994. As the ALJ recognized, the claimant was able to perform her regular duties for a year after being released by her initial treating physician, Dr. Madison. Despite testifying that she was severely disabled by November 1995, the claimant did not obtain any medical treatment until May 1996. Further, the claimant drove to Colorado despite the allegedly serious disability. Under such circumstances, the ALJ was not obliged to credit the claimant’s testimony and opinions concerning the relationship between the industrial injury and the worsened condition.
Similarly, the ALJ was not obliged to credit Dr. Cabanilla’s opinion. Dr. Cabanilla admitted the claimant had sustained a prior industrial injury, and had preexisting degenerative disk disease. Under such circumstances, it was permissible for the ALJ to doubt Dr. Cabanilla’s “conclusory opinion” that the injury was necessarily related to the worsened condition. Moreover, the claimant’s preexisting disease provides a basis for inferring that, even in the absence of some intervening injury after April 1994, the requisite causal relationship could not be established.
It follows that the claimant is not entitled to additional temporary total disability benefits, or medical benefits as a result of the worsened condition. Even if the claimant has demonstrated existence of a disability and the need for medical treatment, she failed to establish that these problems were “proximately caused” by the industrial injury. Section 8-41-301(1)(c), C.R.S. 1997.
Further, the mere fact that the respondents authorized Dr. Cabanilla as a treating physician did not require them to pay for all treatments prescribed by him. To the contrary, authorization is a separate question from whether or not particular treatment is “reasonable and necessary” as result of the industrial injury. The respondents’ act in authorizing Dr. Cabanilla did not waive their right to contest the issue of whether his treatment was causally connected to the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
II.
For their part, the respondents contend the ALJ erred in ordering them to pay permanent partial disability benefits based on the October 27, 1994 Final Admission of Liability. Citing HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990), the respondents argue that Dr. Madison’s letter rendered the final admission improvident, and that they were bound by it only until such time as the ALJ issued an order relieving them from adhering to it. As a corollary to this argument, the respondents assert there is no prohibition against them contesting their own final admission of liability. Under the circumstances, we disagree.
Section 8-43-203(2)(b), C.R.S. 1997, provides in pertinent part;
“An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers’ compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant
should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues
admitted in the final admission.” (Emphasis added).
Section 8-43-203(2)(d), C.R.S. 1997, goes on to provide that:
“Once a case is closed pursuant to this subsection (2), the issues closed may only be reopened pursuant to § 8-43-303.” (Emphasis added).
Statutes should be interpreted to effect the legislative intent. To discern the intent of the legislature, we should first examine the language of the statute, and give the words and phrases their plain and ordinary meanings unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Further, the Act should be interpreted to give consistent, harmonious, and sensible effect to all its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Here, the plain and ordinary meaning of § 8-43-203(2)(b) is that a final admission of liability closes the admitted issues unless the claimant objects to the final admission in writing. As used in workers’ compensation proceedings, the term “claimant” universally refers to the injured employee or the employee’s dependents. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1033, September 18, 1997).
It follows that the respondents’ November 7, 1994 objection to their own final admission of liability was of no force and effect. Section 8-43-203(2)(b) provides, in no uncertain terms, that once the respondents file a final admission of liability, only the claimant, meaning the injured worker or her dependents, retains the right to vitiate the finality of the admission by filing a written objection. Thus, we disagree with the respondents that they were entitled to object to their own final admission of liability concerning the issue of permanent partial disability benefits.
It follows that the ALJ correctly held the respondents are in no position to challenge the October 27, 1994, final admission for permanent partial disability benefits without seeking to reopen the “issue.” Under § 8-43-203(2)(d), issues closed pursuant to a final admission can be reopened only under § 8-43-303. Cf. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (where final admission of liability did not address the “issue” of penalties, claimant was entitled to seek penalties without reopening because the “issue” was not closed).
Here, the respondents filed no petition to reopen the issue of permanent partial disability benefits. Consequently, the ALJ was never asked to address the question of whether the respondents had grounds to reopen the issue under § 8-43-303. Under such circumstances, the ALJ did not err in concluding the respondents were bound by the October 27 final admission with respect to permanent partial disability benefits, and requiring them to pay in accordance with that admission. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995) (once claim closed by final admission, reopening was necessary to reduce benefits).
The respondents’ reliance on HLJ Management Group, Inc. v. Kim, supra, as support for a contrary result, is misplaced. The admission of liability in the Kim case was for temporary disability benefits, and there is no indication that it was a “final admission.” Thus, the Kim court held that either party was free to contest the validity of the admission by requesting a hearing.
In contrast, § 8-43-203(2)(b) establishes specific rules applicable to “final admissions” of liability. These rules provide that only the claimant may object to a final admission, and § 8-43-203(2)(d) forecloses further adjudication of issues addressed by the admission unless there is a reopening. Therefore, the principles announced in HLJ Management Group, Inc. v. Kim do not apply here.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 31, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 28, 1998 to the following parties:
Kathleen S. Weber, 1235 Bonita Ave., Grand Junction, CO 81506
Mesa County, P.O. Box 20000, Grand Junction, CO 81502
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Faye Boyd, IME Unit, Div. Of Workers’ Compensation (Interagency Mail)
Kendra Oyen, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
J. Keith Killian, Esq. Joanna C. Jensen, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
By: __________________________________________________