W.C. Nos. 4-442-071, 4-607-810.Industrial Claim Appeals Office.
March 25, 2005.
FINAL ORDER
In these consolidated cases respondents Baker Petrolite Inc. and Western Guaranty Fund (Baker respondents) seek review of an order of Administrative Law Judge Martinez (ALJ) which reopened W.C. No. 4-442-071
and awarded medical and temporary total disability (TTD) benefits. The Baker respondents contend the ALJ erred in finding a worsened condition because a Division-sponsored independent medical examination (DIME) physician determined the claimant’s symptoms were not caused by the injury, and the claimant failed to challenge that determination. The Baker respondents further contend the evidence does not support the finding that the claimant’s condition worsened. Finally the Baker respondents contend the evidence demonstrates the claimant sustained an intervening injury. We affirm.
The claimant was employed by Baker when he sustained a compensable neck injury on October 19, 1999. The injury was diagnosed as a herniated disc a C6-7, and the claimant underwent a fusion surgery on February 2, 2000. The fusion failed and the claimant underwent a second fusion surgery in February 2002 (order erroneously refers to January 2001). Following this surgery the claimant reported the development of tingling and numbness in his upper extremities and chest as well as dizziness and blurred vision. The claimant testified these symptoms did not exist before the second surgery.
The claimant was placed at maximum medical improvement (MMI) for the physical component of the injury on August 29, 2002, and reached MMI for the psychological component on January 8, 2003. The respondents sought a DIME, apparently restricted to the issue of impairment. (We infer the DIME was not requested on the issue of MMI because the Baker respondents’ final admission [FAL] commenced permanent partial disability benefits on January 9, 2003, and listed the date of MMI as January 8, 2003. The DIME physician’s reports sets the date of MMI at July 2, 2003.).
The DIME physician issued a report on July 2, 2003, and assessed a combined 29 percent whole person impairment rating, based on 27 percent impairment of the cervical region and 3 percent for psychological impairment. In so doing, the DIME physician noted the claimant made “subjective” complaints of numbness and tingling in the upper extremities, chest, and head, and also mentioned dizziness and blurred vision. The DIME stated these symptoms began “six months ago” and found they “are more probably than not unrelated to the work injury” and require no “further active diagnostics or therapeutics as a result of the work injury.”
The respondents filed the FAL admitting to the DIME physician’s rating. Although the claimant objected, she did not file a timely request for a hearing and the claim was closed.
The claimant left employment with Baker and obtained employment with respondent Sartomer Company (Sartomer) in January 2001. The claimant’s duties involved engine repairs, oil changes and various other activities.
The claimant testified that his symptoms, including the numbness, tingling, dizziness and blurred vision gradually worsened after the second surgery. In December 2003, he was examined by Dr. Bair who removed him from work and referred the claimant to Dr. Price, a specialist in physical medicine and rehabilitation.
Significantly, the claimant testified that on December 16, 2003, he slipped on some ice while working at Sartomer and experienced an increase in symptoms. However, the ALJ found these symptoms did not last beyond December 18.
The claimant filed a petition to reopen the claim for the 1999 neck injury, arguing that he suffered a worsened condition. The claimant sought medical treatment recommended by Dr. Bair and TTD benefits commencing December 18, 2003. The ALJ, crediting the opinions of Dr. Bair, found that the claimant’s symptoms, including the tingling and dizziness, have worsened, and the worsening is causally related to the industrial injury. In so doing, the ALJ cited Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002), for the proposition that in the context of reopening based on worsened condition a DIME physician’s opinion “regarding causation stands on the same footing as any of the medical evidence in the claimant’s claim.” The ALJ found that the worsening of condition caused the claimant additional wage loss when Dr. Bair took him off work, and awarded TTD benefits commencing December 18. The ALJ also ordered the respondents to pay for medical treatment provided by and recommended by Dr. Bair.
The ALJ also found the claimant did not sustain a new injury at Sartomer when he slipped on the ice. Therefore, the ALJ denied the claim against Sartomer.
On review, the Baker respondents argue the ALJ failed to give sufficient weight to the DIME physician’s opinion that the claimant’s symptoms of tingling, dizziness and blurred vision are not caused by the industrial injury. Citing Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), these respondents argue the ALJ was bound by the DIME physician’s opinion that the symptoms were not caused by the 1999 injury. Alternatively, the Baker respondents assert the claimant failed to prove any worsening of condition after MMI. We disagree with these arguments.
Section 8-43-303(1), C.R.S. 2004, permits a claim to be reopened based on a worsened condition. In order to reopen, the claimant bears the burden of proof to establish a change in a physical or mental condition which is causally-related to the original industrial injury. As a general matter, the ALJ is granted wide discretion in determining whether the claimant has met the burden of proof, and we must uphold the findings, including those concerning causation, if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). The reopening provisions are indicative of a strong legislative policy that the goal of achieving a just result overrides the parties’ interests in finality Renz v. Larimer County Schoold District, 924 P.2d 1177 (Colo.App. 1996).
When applying the substantial evidence test to the issues of worsening and causation, we must view the evidence in a light most favorable to the prevailing party. Further, we must defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and the plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, supra.
The Baker respondents reason that under the facts of this case the ALJ could not determine the claimant’s worsened symptoms were caused by the industrial injury because the DIME physician had already found they were not, and the claimant did not seek to overcome that determination. It is true that in Qual-Med, Inc. v. Industrial Claim Appeals Office, supra,
the court held that determining the cause of the claimant’s various conditions is part of the diagnostic assessment inherent in the rating process. Therefore, the court concluded that when seeking to overcome a DIME physician’s impairment rating § 8-42-107(8)(c), C.R.S. 2004, requires the party challenging the rating to overcome the DIME physician’s causation findings by clear and convincing evidence.
However, in Cordova v. Industrial Claim Appeals office, supra, the court held that a DIME physician’s opinions that a claimant’s condition worsened, and that the worsening was caused by the industrial injury, were not entitled to presumptive weight when the issue concerned reopening rather than a direct attack on uncontested determinations of MMI and medical impairment. In so doing, the court noted that “the opinions of a DIME physician have only been given presumptive weight when expressly required by the statute,” and the Act contains no such requirement with respect to reopening based on worsened condition. 55 P.3d at 190; see also, Faulkner v. Industrial Claim Appeals Office, 910 P.2d 844 (Colo.App. 2000) (DIME finding regarding causation need not be overcome by clear and convincing evidence where dispute involved threshold issue of whether compensable injury occurred); Gutirrez v. Ready Men Labor, Inc., W.C. No. 4-280-325 (January 9, 2002); Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001) (fact DIME physician assessed medical impairment based on industrial injury did not require his opinion to be given presumptive weight concerning the cause of a subsequent worsening of condition).
It is true the DIME physician opined that the claimant’s symptoms of numbness, tingling and dizziness were not caused by the industrial injury. However, that opinion was based on the state of the evidence at the time the DIME physician rated the claimant’s impairment. The DIME physician did not, indeed could not, evaluate the claimant’s symptoms and condition some six months later, and it is impossible to tell what his opinion might have been concerning whether the claimant’s condition had worsened, and if so whether the worsening was caused by the industrial injury. Cf. Gutirrez v. Ready Men Labor, Inc., supra. In light of the strong legislative policy against finality which underlies the reopening statute, we decline to assign presumptive weight to the DIME physician’s opinion on causation where raised in the context of reopening based on worsened condition. Cordova v. Industrial Claim Appeals Office, supra.
Additionally, we note that one of the purposes of the DIME provisions is to reduce litigation on the issue of permanent impairment. Colorado AFL-CIO v. Donlon, 914 P.2d 396, 402 (Colo.App. 1995). That objective could well be thwarted if we were to give presumptive effect to the DIME physician’s causation opinion in the context of this case. It is unclear from the DIME physician’s report whether, if he had found the claimant’s symptoms were related to the industrial injury, he would have provided an additional impairment rating based on those symptoms. From the claimant’s perspective, challenging the DIME physician’s impairment rating would have required not only overcoming the DIME physician’s finding that the symptoms were not caused by the injury, but also proving that some ratable impairment existed because of the symptoms. Thus, a claimant in this position might well decide not to challenge a DIME physician’s causation finding because, even if successful, it would be difficult or impossible to prove entitlement to additional benefits beyond those admitted. However, the incentive to challenge the DIME physician’s causation determination substantially increases if the statutes are interpreted to mean that the causation determination will be forever binding, even if the condition worsens and the claimant desires to reopen for additional treatment or disability benefits. In the absence of an express legislative statement to the contrary we do not think the statutes should be read so as to encourage such protective litigation.
The Baker respondents assertion that the claimant failed to prove a worsening of condition after MMI is without merit. Dr. Bair testified that the claimant’s symptoms significantly worsened so as to render him unable to work in December 2003. (Tr. Pp. 42-43). This opinion was consistent with the report of Dr. Gebhard dated January 15, 2004, and the claimant’s lay testimony at the hearing. (Tr. Pp. 69-70). Consequently, there is substantial, albeit conflicting, evidence to support the ALJ’s finding that the claimant sustained a worsened condition. The fact some evidence might support a different result affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). For the same reasons we reject the respondents’ arguments concerning the awards of medical and TTD benefits.
Finally, we reject the Baker respondents’ assertion that the ALJ was compelled to find the claimant’s disability and need for treatment are the result of an intervening injury which occurred as Sartomer. The question of whether there was an intervening cause for the claimant’s disability is one of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002).
Here, the ALJ found the claimant’s symptoms were caused by the progressive worsening of the effects of the 1999 injury. In so doing, the ALJ expressly rejected the argument that the claimant sustained an intervening injury when he slipped on the ice, and implicitly rejected the argument that there was a compensable aggravation resulting from the claimant’s work activities at Sartomer. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ need not address all evidence, and evidence and inferences inconsistent with the order were presumably rejected). As we have held, the ALJ’s findings concerning causation are supported by substantial evidence. Therefore, we may not interfere with the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 7, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Michael White, Grand Junction, CO, Baker Petrolite, Inc., Grand Junction, CO, Cynthia McGrady, Sartomer Company, Grand Junction, CO, Francine Gingrich, Denver, CO, American Home Assurance Co., c/o Rusty Pinckney, AIG Claim Services, Phoenix, AZ, Joanna Jensen, Esq., Grand Junction, CO, (For Claimant).
Gregory Daniels, Esq., Denver, CO, (For Respondents Baker Petrolite, Inc. and Western Guaranty Fund) Kent L. Yarbrough, Esq., Denver, CO, (For Respondents Sartomer Company and American Home Assurance Co.).