W.C. No. 4-408-369Industrial Claim Appeals Office.
December 26, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied a petition to reopen based on a worsened condition. The claimant contends the ALJ ignored the legal principle that aggravation of a preexisting condition constitutes a compensable injury. The claimant also contends the ALJ failed to give sufficient weight to the opinion of the Division-sponsored independent medical examination (DIME) physician concerning the cause of the claimant’s condition. We affirm.
The claimant sustained a compensable back injury on December 4, 1998. The injury was diagnosed as a back strain and treated conservatively. The claimant was placed at maximum medical improvement (MMI) on April 7, 1999. The treating physician opined the claimant was suffering from a “chronic pain syndrome” and found no permanent medical impairment.
The claimant underwent a DIME on the issue of medical impairment. The DIME physician assessed the claimant as suffering a 10 percent whole person medical impairment. This rating included 5 percent for a specific disorder of the lumbar spine “in that there was a demonstrable back injury which did not improve systematically.” The DIME physician also assessed 5 percent impairment for psychological difficulties.
In November 2000 the claimant underwent back surgery performed by Dr. Pettine. The surgery was described as a “posterior interbody fusion with instrumentation surgery at claimant’s L5-S1 level.” Dr. Pettine opined the surgery was causally related to the claimant’s compensable back injury, and the claimant filed a petition to reopen based on a worsened condition.
The respondents submitted the opinion of Dr. Jannsen. Dr. Jannsen opined the need for surgery was caused by the claimant’s preexisting degenerative spinal disease, not the industrial injury. In support of this opinion Dr. Jannsen noted the claimant’s post-injury MRI indicated the presence of a long-standing degenerative condition, but no evidence of acute injury.
Crediting the opinion of Dr. Jannsen, the ALJ found the claimant “failed to show it more probably true than not that her condition from her industrial lumbar strain worsened and caused her need for surgery in November 2000.” The ALJ also discredited the conflicting opinions of Dr. Pettine and the claimant’s personal physician. Consequently, the ALJ denied the petition to reopen.
I.
On review, the claimant contends the ALJ’s order is erroneous as a matter of law because it fails to recognize that aggravation of a preexisting condition constitutes a compensable injury. Under these circumstances, the claimant asserts we may issue “new findings” that the claimant’s worsened condition is causally related to the industrial injury. We disagree.
Neither we nor the respondents dispute that an industrial injury which aggravates a preexisting condition constitutes a compensable event for purposes of workers’ compensation. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the mere fact that the claimant has sustained a compensable injury does not mean that all disability or need for medical treatment which occurs after the injury is causally related to the injury. To the contrary, the claimant maintains the burden of proof to establish that the disability and need for treatment were “proximately caused by an injury or occupational disease arising out of and in the course of” the employment. Section 8-41-301(1)(c), C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000).
The rule is no different when the claimant seeks to reopen the claim based on a “change in condition” pursuant to § 8-43-303, C.R.S. 2001. Indeed, a change in condition “refers either to a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original injury.” Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985). Moreover, the power to reopen is discretionary, and we may not interfere with the ALJ’s order absent fraud or a clear abuse of discretion. Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The claimant’s contention notwithstanding, the determination of which of two possible causes is responsible for the claimant’s disability and need for treatment is one of fact for determination by the ALJ University Park Care Center v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001) Faulkner 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. 2001. This standard or review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 251).
The claimant’s argument notwithstanding, the ALJ’s order does not reflect any misapplication of the law. The ALJ did not rule, either explicitly or implicitly, that an industrial aggravation of a preexisting condition does not constitute a compensable event. Instead, the ALJ found the claimant’s need for surgery approximately one and a half years after reaching MMI was not caused by any compensable consequence of the industrial injury. Relying on the testimony of Dr. Jannsen, the ALJ found the need for surgery was caused by the natural progression of the claimant’s preexisting degenerative spinal disease. Although the record might support a contrary finding and conclusion, resolution of the issue was one of fact based on the evidence presented. Further, the medical records and testimony cited by the ALJ constitute substantial evidence in support of his finding on the issue of causation. Consequently, the ALJ did not err as a matter of law in denying the petition to reopen.
II.
The claimant next contends the ALJ erred by applying the preponderance of the evidence standard in determining whether the claimant’s condition had worsened, and, if so, the cause of the worsening. Relying principally on Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), the claimant argues the DIME physician assessed medical impairment based on the claimant’s industrial injury, and, therefore, the ALJ was required to accept the DIME physician’s opinion concerning the cause of the claimant’s worsened condition unless overcome by clear and convincing evidence. This argument is without merit.
Section 8-42-107(8)(b)(III), C.R.S. 2001, and § 8-42-107(8)(c), C.R.S. 2001, require that the DIME physician’s findings concerning MMI and the claimant’s medical impairment rating be treated as binding unless overcome by clear and convincing evidence. In Qual-Med the court held the DIME physician’s finding that a component of the claimant’s overall medical impairment was caused by the industrial injury could not be set aside unless overcome by clear and convincing evidence. The court reasoned that “as a matter of diagnosis, the assessment of impairment requires a rating physician to identify and evaluate all losses and restrictions which result from the industrial injury.” Id. at 592.
However, a finding that all injury-related conditions are at MMI, or that a particular component of the claimant’s medical impairment was caused by the industrial injury, does not amount to a determination that any subsequent worsening of condition is causally-related to the industrial injury. Indeed, the claimant bears the initial burden of proof to establish a worsening of condition which was caused by the industrial injury. See Richards v. Industrial Claim Appeals Office, supra. Therefore, the reopening scenario is analogous to Faulkner v. Industrial Claim Appeals Office, supra, where the court held that a DIME physician’s opinion concerning the cause of the claimant’s condition was not entitled to presumptive weight where the issue concerned “the threshold question whether the claimant had sustained any compensable injury arising out of and in the course of her employment.”12 P.3d at 846.
Here, the DIME physician did not state that his impairment rating was based on an “aggravation” of the claimant’s preexisting degenerative condition, nor did he state the rating was based on a collapse of the claimant’s disc space. Moreover, the DIME physician did not examine the claimant or review any medical records after performing the impairment rating. Therefore, it is difficult to understand how his report may be considered as expressing any opinion about the cause of the claimant’s subsequent need for surgery.
Further, we have previously rejected the precise argument advanced by the claimant in this case. The following language from Cordova v. Foudation Builders, Inc., W.C. No. 4-296-404 (April 20, 2001), is pertinent:
It follows the ALJ was not required to give any special weight to the opinion of the DIME physician concerning whether or not the claimant’s condition had worsened, and whether any worsening was causally related to the industrial injury. Nothing in § 8-43-303(1), or elsewhere in the Act, provides that a DIME physician’s opinion is entitled to special weight on these issues, and we have no authority to legislate such a requirement. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). Indeed, the courts have consistently declined to give special weight to the opinions of the DIME physician except where the statute expressly requires it. E.g. Faulkner v. Industrial Claim Appeals Office, supra (DIME physician’s opinion concerning causation need not be overcome by clear and convincing evidence where the dispute involved the “threshold requirement” that the claimant establish a compensable injury); Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995) (DIME physician’s finding of MMI did not prohibit order for change of physician to the extent physician would provide Grover-style medical benefits).
Since our decision in Cordova, the Court of Appeals has held that a DIME physician’s impairment rating, which included apportionment based on preexisting impairment, was not entitled to presumptive weight where the question was whether the preexisting impairment was independently disabling at the time of the industrial injury. In Public Service Co. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001), the court held that “whether a claimant’s prior injuries are `disabling’ for purposes of § 8-42-104(2) is largely a question of fact to be determined by the ALJ.” Further, that “determination is governed by the preponderance of the evidence standard.”
We see no basis for departing from our prior holding. Therefore, we hold the ALJ did not err in applying the preponderance of the evidence standard when determining whether the claimant’s condition worsened, and, if so, whether the worsening was caused by the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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 December 26, 2001 to the following parties:
Charlene Westerkamp, 1400 S. Collyer St., #296, Longmont, CO 80501
Target Stores, 4301 E. Virginia Ave., Denver, CO 80246-1510
Constitution State Service Co., Karen B. Parker, The Travelers Companies, P.O. Box 173762, Denver, CO 80217-3762
Michael D. Brown, Esq., 5723 Yukon St., Arvada, CO 80002 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy