W.C. No. 4-794-664.Industrial Claim Appeals Office.
November 24, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated June 15, 2010, that determined the claimant suffered a compensable injury and ordered the payment of temporary total disability (TTD). We affirm.
The respondents concede that the claimant sustained a compensable injury to her right knee on March 26, 2009, but deny that she suffered a compensable injury to her back. The ALJ concluded that the claimant had shown by a preponderance of the evidence that the work injury of March 26, 2009 caused or aggravated a pre-existing condition to cause the need for medical treatment for the claimant’s back condition. The ALJ awarded TTD benefits despite the opinion from a physician who the respondents argue was an “attending” physician that released the claimant to regular employment.
I.
The respondents contend the ALJ’s finding that the claimant sustained a compensable back injury on March 26, 2009 is not supported by substantial evidence and applicable law. The respondents argue that the totality of the evidence showed that the claimant sustained a compensable injury only to her right knee on March 26, 2009, but not a compensable injury to her back. The respondents argue that the ALJ failed to resolve conflicts in the evidence. We are not persuaded to interfere with the ALJ’s order.
Proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. Section 8-43-201, C.R.S.; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant has proven a causal relationship between the industrial injury of March 26, 2009 and the
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alleged back condition is one of fact for determination by the ALJ City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997) Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
The ALJ made the following relevant findings of fact concerning the back injury. The claimant testified that on March 26, 2009 while delivering a product she lost her footing on an icy parking lot and fell injuring her low back and right knee. The claimant testified that initially her back hurt, which worsened later that evening into dull, aching and shooting pain. The claimant reported the work injury to her employer on March 28, 2009 and reported that the injury involved her lower back. The Employer’s First Report of Injury, dated March 28, 2009 documented that the claimant timely reported a back injury.
The ALJ noted that the first time the medical records reflect that the claimant reported having back pain was in an evaluation with Dr. Gill on June 15, 2009. Dr. Gill performed x-rays of the claimant’s low back and pelvis and recommended a series of diagnostic tests and treatment beginning with injections for her low back symptoms, which he diagnoses as an L5-S1 spondylolisthesis with subtle movement on flexion and extension. However, the ALJ also noted that the claimant did report to her employer immediately after the injury that her back was injured during the slip and fall incident. Dr. Clifford evaluated the claimant and opined that although the claimant had a preexisting back condition the March 26, 2009 fall aggravated the claimant’s pre-existing spondylolysis.
The ALJ found the opinions of Dr. Clifford to be credible and persuasive. The ALJ noted certain inconsistencies involved in the case, but found that they were outweighed by the consistencies in the claimant’s claim. The ALJ specifically credited the testimony of the claimant.
The ALJ concluded that the claimant had shown by a preponderance of the evidence that the work injury of March 26, 2009 caused, aggravated or accelerated, with a pre-existing condition, to cause the need for medical treatment for the claimant’s back condition. Therefore, the ALJ determined that the claimant had proven by a preponderance of the evidence that her back injury was a compensable consequence of the March 26, 2009 work injury.
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The respondents argue that the weight of the evidence does not support the ALJ’s finding that the claimant sustained a compensable injury to her back on March 26, 2009. However, the standard we must follow is whether the ALJ’s order was supported by substantial evidence. Section 8-43-301 (8). In our view the claimant’s testimony and the opinions of Dr. Clifford constitute substantial evidence supporting the ALJ’s determination of compensability. Therefore we are bound by such determination.
Moreover, we are not persuaded by the respondents’ argument that the ALJ failed to resolve the conflicts between Dr. Jensen’s records and the claimant’s assertions on whether the claimant reported a back injury to Dr. Jensen. The respondents contend that in order for the claimant to be credible the ALJ must find that Dr. Jensen was lying. We disagree that the ALJ failed to sufficiently resolve relevant conflicts in the evidence.
The ALJ made the following findings of fact. The claimant complained to the employer that her symptoms were worsening and was referred to Dr. Jensen on April 14, 2009. The claimant testified that she complained of low back pain to Dr. Jensen, but that the clinical focus was on her right knee. The claimant testified that despite her complaints of back pain, Dr. Jensen did not provide the claimant with treatment for her low back condition. Dr. Jensen noted after a conference with the claimant’s attorney and the respondents’ attorney that he declined to offer an opinion regarding the claimant’s ongoing low back complaints, but then indicated that “it would be reasonable to assume she developed some compensatory low back discomfort secondary to her knee injury.” Dr. Roth opined that the claimant’s low back symptoms were not related to the March 26, 2009 accident. In support of his opinion Dr. Roth reasoned that the claimant had a pre-existing low back injury and did not report back symptoms or a back injury to Dr. Jensen when she first received treatment on April 15, 2009. Dr. Roth noted that the claimant was not a credible historian. The ALJ credited the testimony of the claimant and the opinions of Dr. Clifford over the testimony and opinions of Dr. Roth.
It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). In our view, the basis of the order is apparent from the findings which were entered by the ALJ. The claimant testified that she did report a back injury to her physicians. The ALJ found the claimant to be credible. The respondents’ defense to compensability of the back claim, that the claimant did not report the back claim for a lengthy period of time, was not found persuasive by the ALJ.
The case turned in significant part on credibility determinations made by the ALJ. We note that the ALJ is not required to articulate the basis for his credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987).
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Rather, the ALJ’s credibility determinations must merely be sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991). We have no trouble in determining how the ALJ resolved conflicts in the evidence. Therefore, we are not persuaded to interfere with his order.
II.
The respondents next contend that the ALJ’s finding that the claimant was entitled to TTD benefits from December 3, 2009, when she was released to regular employment by Dr. Jensen, through January 17, 2010, when she returned to work, was not supported by substantial evidence or applicable law. The respondents contend that Dr. Jensen was an attending physician who addressed work restrictions in his initial evaluation. Dr. Jensen issued a report opining that the claimant could be released to regular duty dated December 3, 2009. Citing § 8-42-105(3)(c) C.R.S., the respondents argue that the ALJ erred in awarding TTD benefits from December 3, 2009 through January 17, 2010.
Section 8-42-105(3)(c) specifically mandates the termination of TTD benefits when the attending physician releases a claimant to return to work. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). Because § 8-42-105(3)(c) mandates termination of TTD benefits if the attending physician gives the employee a written release to return to regular employment, the courts have determined that an ALJ may not disregard the attending physician’s opinion that a claimant is released to return to regular employment. Imperial Headware, Inc. v. Industrial Claim Appeals Office 15 P.3d 295 (Colo. App. 2000); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).
The courts have held that the term “attending physician,” as used in § 8-42-105(3)(c), means a physician within the chain of authorization who takes care of the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). Th Popke court added that although the claimant may have multiple attending physicians, the statute does not authorize a release by “any” attending physician. Rather, a release to return to regular employment is not effective unless it is issued by “the attending physician.”
The identity of “the” attending physician is a question of fact for determination by the ALJ. Popke v. Industrial Claim Appeals Office, supra. The Popke court did not enumerate a definitive set of factors to be considered by the ALJ. It suggested that the ALJ might consider the identity of the initial treating physicians, the length of time the claimant treated with a particular physician, and whether a release to regular employment was approved by the initial treating physician. Of course, these criteria were a product of the fact-pattern in the Popke case, and apparently not meant to be exclusive. Herb v. Mariner Post Acute Network, W. C. No. 4-496-527 (May 19, 2003).
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As noted above we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Here the ALJ found that Dr. Jensen was no longer the attending physician as of the time that he released the claimant to return to regular employment. The ALJ made the following findings of fact. The claimant reported the work injury to her employer on March 28, 2009 and reported that the injury involved her lower back. The claimant sought treatment for her low back condition with Dr. Gill on June 15, 2009 and the respondents were aware that the claimant was alleging that her March 2, 2009 accident resulted in an injury to her lower back as of the June 15, 2009 appointment. The respondents failed to refer the claimant to a physician to treat her low back injury and the choice of provider fell to the claimant. The claimant chose Dr. Clifford to treat her back injury. Dr. Clifford was authorized as of his first visit with the claimant to treat her back condition. Moreover the ALJ found that the release to return to regular employment did not take into consideration the claimant’s complete medical condition as Dr. Jensen did not consider the claimant’s back injury.
The ALJ made the following additional findings of fact. The ALJ determined that Dr. Heil was the claimant’s attending physician as of December 3, 2009. Dr. Jensen specifically indicated that he had no role in the case since the claim adjuster assumed control of the case when she instructed the claimant not to return to Dr. Heil and referred her to the Steadman Hawkins clinic for further evaluation. Dr. Heil had limited the claimant’s ability to return to work to include no prolonged standing or walking as of December 16, 2009. The ALJ credited the restrictions of Dr. Heil over the release to return to “regular employment” from Dr. Jensen. The ALJ further determined that Dr. Clifford was the claimant’s attending physician with regard to her low back injury and became the claimant’s attending physician on September 10, 2009. The ALJ determined that the claimant had shown by a preponderance of the evidence that she was entitled to TTD benefits for the period of time from December 3, 2009 through her return to work on January 18, 2010.
The respondents do not challenge the individual findings of fact made by the ALJ on this issue, but contend that the claimant does not dispute that Dr. Jensen was the attending physician. However, we do not find that to be the case. The respondents argue that Dr. Jensen released the claimant to return to regular duty only after consultation and agreement with Dr. Heil. However, the issue of who the attending physician was remained a question of fact to be resolved by the ALJ. Although there may be some confusion of whether Dr. Heil or Dr. Clifford was the attending physician it is clear that the ALJ did not agree with the respondents that Dr. Jensen was the treating physician.
The burden was upon the respondents under § 8-42-105(3)(C) to demonstrate that the attending physician gave the claimant a written release to return to regular
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employment. Morguecho v. Baumagartner, W.C. No. 4-139-355 (September 21, 1994). It is clear that the ALJ was not persuaded that respondents carried that burden. In our view, the medical records constitute substantial evidence in support of the ALJ’s determination that Dr. Jensen was not the attending physician at the relevant time. Therefore, we must uphold the ALJ’s determination. Section 8-43-301(8), C.R.S. Consequently we are not persuaded that the ALJ’s order was contrary to the provisions of § 8-42-105(3), C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 15, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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CINDY JONES, 1679 O ROAD, LOMA, CO, (Claimant).
FRITO-LAY, INC., C/O: ROCKY MOUNTAIN ZONE — 49771, COLORADO SPRINGS, CO, (Employer).
SEDGWICK, Attn: LAURIE ATOE, C/O: CMS, LEXINGTON, KY, (Insurer).
WITHERS, SEIDMAN, RICE MUELLER, PC, Attn: DAVID B. MUELLER, ESQ., GRAND JUNCTION, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC J POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
RED HAT PRODUCE, INC., Attn: SAM BLACK — REGISTERED AGENT, AUSTIN, CO, (Other Party).
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