W.C. No. 4-310-363Industrial Claim Appeals Office.
January 16, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded temporary total disability benefits. We affirm.
The claimant suffered an admitted low back injury on June 12, 1996. Dr. Turnbow restricted the claimant to modified employment and recommended physical therapy. On July 22, 1996, Dr. Turnbow placed the claimant at maximum medical improvement (MMI) and gave her a release to return to her regular employment. The following day the claimant was discharged from her job with the employer and has remained unemployed.
On September 27, 1996, the claimant was examined by Dr. Aschberger who diagnosed right sciatica with possible radiculopathy and a possible herniated disc, proximately caused by the industrial injury. Dr. Aschberger also opined that the claimant is medically restricted from performing her regular employment.
In November 1995 the claimant was reexamined by Dr. Turnbow. Dr. Turnbow agreed with Dr. Aschberger’s, diagnosis but disputed Dr. Aschberger’s opinion that the claimant’s ongoing back problems are related to the industrial injury.
Thereafter, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Treihaft on the issue of MMI. Dr. Treihaft agreed with Dr. Aschberger’s diagnosis, as well as his opinion that the claimant’s condition is causally related to the industrial injury. Dr. Treihaft also opined that the claimant needs additional treatment, and therefore, is not at MMI.
The ALJ determined that the respondents failed to sustain their burden to overcome Dr. Treihaft’s opinions by “clear and convincing evidence,” as required by § 8-42-107(8)(b)(III), C.R.S. In so doing, the ALJ rejected the opinions of Dr. Turnbow. The ALJ found that Dr. Turnbow’s opinions concerning the cause of the claimant’s condition are inconsistent with the physical therapist’s notes, Dr. Turnbow’s own admissions and the opinions of Dr. Aschberger and Dr. Treihaft. The ALJ also found that there was no evidence the claimant’s ongoing back problems were caused by a mechanism other than the industrial injury. Therefore, the ALJ determined that the claimant’s ongoing back problems are compensable, and awarded temporary total disability benefits commencing July 26, 1996, as requested in the claimant’s Application for Hearing.
I.
On review, the respondents first contend that the ALJ erroneously applied the burden of proof by requiring them to present “clear and convincing evidence” to overcome Dr. Treihaft’s opinion concerning the “cause” of the claimant’s condition. Relying upon Mendonca v. Industrial Claim Appeals Office
(Colo.App. No. 96CA0736, December 12, 1996) (not selected for publication), the respondents argue that the claimant bore the initial burden to prove by a preponderance of the evidence that her herniated disc is related to the industrial injury.
As argued by the claimant, the record reflects that the respondents waived this argument. At the commencement of the hearing claimant’s counsel asserted that the respondents bore the burden to overcome Dr. Treihaft’s opinion that the claimant is not at MMI. (Tr. p. 4). Relying upon our conclusions in Chestnut v. University of Colorado Boulder, W.C. No. 4-255-498 (December 13, 1996), the claimant also argued that the respondents bore the burden to overcome Dr. Treihaft’s opinions on the “causation” issue.
In response, the attorney for the respondents stated:
“In this case, it doesn’t matter. To overcome [sic] Division IME by clear and convincing evidence necessarily means attacking the collection of causality. It is inherent in that.” (Tr. p. 5).
The respondents then proceeded to present their case in chief.
Under these circumstances, we conclude that the respondents conceded their duty to overcome Dr. Treihaft’s opinion on the issue of “causation” by “clear and convincing evidence.” Consequently, the respondents argument to the contrary is not properly before us on appeal. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (counsel may not take one position before ALJ and argue a contrary position on appeal).
Nevertheless, even if properly before us on review, we would reject the respondents’ argument. We have issued a series of decisions, including Chestnut v. University of Colorado-Boulder, supra, in which we stated that an IME physician’s opinion on the issue of MMI necessarily includes a determination concerning the cause of the claimant’s condition. Fields v. TAD Temporaries, W.C. No. 4-185-877, (September 7, 1995); Cordova v. United Parcel Service, W.C. No. 4-165-196 (May 9, 1997); see also Fisher v. University of Denver, W.C. No. 4-254-479 (September 10, 1997) Clem v. Quality Med Inc., W.C. No. 4-181-242 (August 11, 1997) (IME physician’s opinion that particular permanent impairment is causally related to the industrial injury is an inherent part of the IME physician’s rating). Based upon the definition of MMI in §8-40-201(11.5), C.R.S. 1997, we reasoned that an IME physician’s determination of MMI inherently requires a determination of whether a particular physical impairment is the “result” of the industrial injury.
Moreover, we have held that the statutory provisions currently codified at § 8-42-107(8)(b), reflect a legislative intent to defer to the IME physician concerning the cause of a need for additional treatment unless that opinion is overcome by clear and convincing evidence at a hearing. Fields v. TAD Temporaries, supra. In this regard, § 8-42-107(8)(b), furthers the legislative goal of reducing litigation over MMI by placing greater weight on the opinion of the IME physician. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
The respondents’ arguments do not persuade us to depart from our conclusions in Fields and Chestnut. Therefore, the ALJ did not err insofar as he required the respondents to overcome by “clear and convincing evidence” Dr. Treihaft’s opinion concerning the “cause” of the claimant’s need for additional treatment.
Furthermore, Mendonca v. Industrial Claim Appeals Office, supra, does not compel a contrary result. As we read Mendonca, it merely holds that a claimant may seek ongoing medical benefits after MMI under the preponderance of the evidence standard. Conversely, Mendonca upholds the proposition that an IME physician’s findings concerning MMI are binding unless overcome by “clear and convincing evidence.” Therefore, Mendonca is not inconsistent with the result which we reach here.
In any case, the ALJ did consider the evidence under the “preponderance of the evidence” standard, and determined that the IME physician’s opinion was sufficient to prove that the claimant’s ongoing back problems are related to the original industrial injury. See (Conclusions of Law). Therefore, we perceive no basis to interfere with the ALJ’s determination that the claimant’s continuing back problems are a compensable component of the industrial injury.
II.
Citing PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the respondents also contend that the claimant failed to sustain her burden of proof for an award of temporary total disability benefits. The respondents contend that the claimant failed to prove that she was unable to find or maintain employment “within her restrictions” after the July 23, 1996, employment termination. Therefore, they argue that the ALJ erred in awarding temporary disability benefits. We reject the respondents’ argument.
The respondents do not contend that Dr. Turnbow’s July 22, 1996 release to regular employment is dispositive of the claimant’s entitlement temporary disability benefits. See §8-42-105(3)(c), C.R.S. 1997. Therefore, we do not consider this issue.
In order to receive temporary disability benefits the claimant must establish a causal connection between the industrial injury and the temporary loss of wages. PDM Molding, Inc. v. Stanberg, supra; Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). In PDM Molding, Inc. v. Stanberg supra, the Supreme Court held that where a claimant is injured, and is “subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault.” PDM Molding, Inc. v. Stanberg, 898 P.2d at 849. If the claimant was “at fault,” the termination severs the causal connection between the injury and the subsequent wage loss. Under these circumstances, the claimant is precluded from receiving further temporary disability benefits unless she reestablishes the causal connection by proof that the injury contributed “to some degree” to the wage loss.
Crediting the opinions of Dr. Aschberger, the ALJ found that as of July 23, 1996, the claimant was medically restricted from lifting over 10 pounds, bending, twisting and prolonged sitting. The ALJ also found that the claimant’s job duties as of July 23, 1996, exceeded these restrictions. Further, the ALJ found that no modified employment within the restrictions imposed by Dr. Aschberger had been offered to the claimant. Because there is substantial evidence in the record to support these findings, they must be upheld on appeal. See (Tr. pp. 33-34; Dr. Aschberger report March 3, 1997); § 8-43-301(8), C.R.S. 1997.
In view of the ALJ’s finding that the claimant’s employment exceeded her physical abilities, the claimant’s loss of that employment could not have severed the causal connection between her disability and her wage loss. Moreover, because the only employment which was offered to the claimant did not meet her physical limitations, the ALJ could reasonably infer that the industrial disability contributed “to some degree” to the claimant’s subsequent unemployment. Thus, the ALJ’s findings support the award of temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 30, 1997, is affirmed.
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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed January 16, 1998 to the following parties:
April West, 4321 N. 119th Ave., Lafayette, CO 80026
Black Roofing, Inc., Attn: Jay Kupec, 6115 Ben Pl., Boulder, CO 80301
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Marlin W. Burke, Esq., 1700 Broadway, Ste. 1800, Denver, CO 80290 (For the Claimant)
Stacy J. Tarler, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
BY: _________________________________