Opinion
W.C. No. 4-131-868
April 3, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ), which granted the claimant's petition to reopen based on worsened condition, awarded temporary total disability benefits, and granted the claimant's request for a change of physician. The respondents contend the record lacks substantial evidence to support the ALJ's finding of a worsened condition, and that the record does not support the award of temporary disability benefits or change of physician. We affirm the order insofar as it determines the claimant suffered a worsened condition. We set the order aside and remand for entry of a new order concerning the issues of temporary disability benefits and change of physician.
The claimant sustained a compensable back injury in April 1992 while employed as a salad bar attendant. After a long course of conservative therapy, the treating physician placed the claimant at maximum medical improvement (MMI) on April 23, 1996. The claimant underwent a Division-sponsored independent medical examination (DIME) in July 1996. The DIME physician concurred with the treating physician's date of MMI, opined the claimant was not a candidate for surgery, and assigned a 13 percent whole person impairment rating. In August 1996 the respondents filed a final admission of liability in accordance with the DIME physician's report.
The claimant sought to overcome the DIME physician's opinion concerning MMI. However, in an order dated January 29, 1997, ALJ Stuber found the claimant failed to prove by clear and convincing evidence that she needed surgery in light of "her multilevel and inconsistent pain origins, her psychological condition, her predominance of low back pain rather than leg pain, and various nonphysiological pain behaviors."
In August 1997 the claimant filed a petition to reopen based on worsened condition. At the hearing in June 2001, the claimant alleged her back condition had worsened and she needed surgery to repair a herniated disc at L4-5, which impinged on the L5 nerve root. The surgery was performed by Dr. Norrgran on September 17, 1997.
Crediting the opinions and reports of Dr. Norrgran, the ALJ found the claimant's condition did worsen so as to render the back surgery reasonable and necessary to cure and relieve effects of the industrial injury. The ALJ further found the claimant has been "unable to return to work as a result of this industrial injury," and is "unable to return to the employment she held at the time of the injury because of her restrictions due to the injury." Consequently, the ALJ awarded temporary total disability benefits commencing September 10, 1997, "the date [the claimant's] condition worsened to the point surgery was needed" and she elected to undergo the procedure. (Finding of Fact 6; Conclusion of Law 6).
Concerning the claimant's request for a change of physicians, the ALJ found the claimant has been treated by Dr. Burks since January 1998. The ALJ further found the respondent did not tender "any medical care to the claimant following the worsening of her condition in September 1997." Consequently, the ALJ concluded the claimant made a proper showing to have Dr. Burks attend her as the treating physician.
I.
On review, the respondents first contend the record lacks substantial evidence to support the ALJ's finding that the claimant proved a worsened condition sufficient to reopen the claim. Specifically, the respondents argue the ALJ erred in relying on Dr. Norrgran's opinions because she admitted there was no change in the claimant's clinical condition after MMI. The respondents also argue that Dr. Norrgran's recommendation for surgery was predicated on the post-MMI development of leg pain, but they point out the claimant reported leg pain when she was placed at MMI by the DIME physician. Thus, the respondents reason, there was no change of condition. The respondents also rely on the opinions of other physicians who opined the claimant was not a surgical candidate. We find no error.
Section 8-43-303(1), C.R.S. 2001, authorizes reopening based on a "change in condition." A change in condition refers to a "change in the claimant's physical or mental condition which can be causally connected to the original compensable injury." Chavez v. Industrial Commission, 714 P.2d 1328, 1330 (Colo.App. 1985). Reopening is appropriate not only when the degree of the claimant's permanent disability has changed, but also when additional temporary disability or medical benefits are needed. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000).
The authority to reopen is discretionary with the ALJ. See Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). Consequently, we may not interfere with the ALJ's order absent a clear abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by substantial evidence or is contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
We must uphold the ALJ's findings of fact if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. The standard of review requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' arguments notwithstanding, the reports and testimony of Dr. Norrgran constitute substantial evidence in support of the ALJ's finding the claimant's condition worsened so as to warrant surgery. As the ALJ recognized, on December 17, 1996, Dr. Norrgran recommended conservative therapy despite the results of an MRI which revealed a "contained protrusion at the L4-5 level" which was touching the L5 nerve root and "the probable cause of [the claimant's] left leg pain." On January 24, 1997, Dr. Norrgran reported the disc problem "is why her L5 radiculopathy on the left continued to progress." (Emphasis added). However, it was not until September 1997, after the claimant's symptoms continued to worsen, that Dr. Norrgran finally determined that surgery was the appropriate form treatment. (See surgical report, September 17, 1997).
It may be the claimant did not have any leg pain when Dr. Norrgran first examined her in 1994, and that Dr. Norrgran was unaware the claimant had leg pain at the time the claimant was placed at MMI by the DIME physician. However, Dr. Norrgran's opinion may reasonably be interpreted to mean the claimant's symptoms continued to worsen after MMI, and that surgery became a reasonable and necessary treatment by September 1997. Indeed, as the ALJ found, the claimant's symptoms improved after the surgery. Consequently, although other findings were possible, substantial evidence supports the ALJ's finding that reopening was appropriate because the claimant needed additional medical treatment to cure and relieve the effects of the injury. Richards v. Industrial Claim Appeals Office, supra; Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). The mere fact that other findings and conclusions were possible is immaterial on review.
II.
The respondents next contend the ALJ's award of temporary disability benefits is contrary to the evidence because the claimant failed to demonstrate the worsening of condition caused an additional temporary loss of wages. The respondents point out the claimant testified that she had not looked for any work since unsuccessfully attempting to return to her preinjury employment in 1992. (Tr. pp. 5-6, 18). Because the ALJ's findings are insufficient to permit appellate review, and because the ALJ may have misapplied the law, we remand for entry of a new order on this issue.
In City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637, 640 (Colo.App. 1997), the court held that a worsening of "an original condition after a claimant reaches MMI does not itself entitle the claimant to renewed TTD benefits, unless the worsened condition causes an additional temporary loss of wages." The court reasoned that unless the worsened condition results in additional restrictions which cause additional impairment of the claimant's capacity to earn wages, the claimant's impaired earning capacity remains permanent. In light of City of Colorado Springs, we have set aside an award of temporary disability benefits where the "ALJ's award of benefits was predicated on the conclusion that because the claimant's condition worsened, and because she remained unable to perform her preinjury employment, she was automatically entitled to temporary total disability benefits." Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14, 1998). In Stineman, we remanded the matter for the ALJ "to determine as a matter of fact whether the claimant's worsened condition caused any additional physical restrictions" which to some degree "caused the claimant to sustain additional wage loss."
Here, the ALJ's order appears to base the award of additional temporary disability benefits on findings that, as of September 10, 1997, the claimant's condition was no longer at MMI, and the claimant was unable to perform her preinjury employment. As held in City of Colorado Springs v. Industrial Claim Appeals Office and Stineman v. La Villa Grande Care Center, this is not the correct inquiry. Rather the ALJ must determine as a matter of fact whether the claimant's worsened condition resulted in additional physical restrictions which impaired the claimant's earning capacity to a greater extent than existed on April 23, 1996, the original date of MMI.
We conclude a remand is necessary because the evidence is subject to conflicting inferences. On the one hand, the claimant's testimony could support the inference that she has been totally disabled since she was placed at MMI. If this inference were drawn, the claimant would not be entitled to additional temporary disability benefits because she retained no residual earning capacity which could be impaired by the worsened condition. Instead, the claimant's impaired earning capacity would remain permanent. Cf. Sanchez v. Herschel R. Oliver, W.C. No. 3-103-380 (August 12, 1998). On the other hand, the respondents' August 1996 final admission is for permanent partial disability, not permanent total disability. The claimant testified that she has not worked since 1997 because she "can't do a lot of things with my body, and I am in too much pain." (Tr. p. 11). This evidence, taken with the fact the claimant underwent back surgery on September 17, 1997, could support an inference the claimant had residual earning capacity at the time she was placed at MMI, but the worsened condition caused additional physical limitations which totally impaired her capacity to earn wages.
III.
The respondents next contend the ALJ erred in authorizing a change in the treating physician. Because one of the ALJ's findings is not supported by the evidence, and because the ALJ's findings are insufficient to support appellate review, we remand for entry of a new order on this issue. Section 8-43-301(8).
The ALJ concluded the claimant made a "proper showing," pursuant to § 8-43-404(5)(a), C.R.S. 2001, to have Dr. Burks treat her. The only factual findings in support of this determination were that the claimant treated with Dr. Burks since January 1998, and the insurer "had not tendered any medical care" to the claimant after the worsening of her condition. We conclude the evidence does not support one of the ALJ's findings, and that the findings are otherwise insufficient to support appellate review.
We have previously held that an ALJ has wide discretion in determining whether the claimant made a "proper showing" for a change of physician pursuant to § 8-43-404(5)(a). Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400(December 14, 1998). Consequently, the ALJ's order must be upheld unless it constitutes an abuse of discretion because it is unsupported by the evidence or is contrary to law.
Here, we are unable to determine the evidentiary basis for the ALJ's finding of fact that the insurer failed to tender any medical care to the claimant after the worsening of her condition. So far as we can ascertain, the record contains no evidence the employer refused to "tender" medical care to the claimant following the alleged worsening of condition. Instead, the claimant testified she elected treatment by Dr. Burks because she considered him a good physician, and because Dr. Burks would accept Medicaid payments. The claimant also testified that none of the previously authorized treating physicians actually refused to treat her. (Tr. p. 10-11, 16-17).
Thus, this is not a case in which the claimant alleged the right of selection automatically passed to her because the insurer failed to designate an authorized physician following the worsening. Cf. Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000) (right of selection did not pass where two of four physicians did not refuse to treat claimant). Rather, the claimant simply requested a "change" in the authorized physician. Moreover, a distinction must be made between "authorization" for treatment and liability for treatment. An insurer may designate an authorized physician without admitting liability for any treatment recommended by the physician. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999).
Because the ALJ's finding that the insurer failed to tender treatment is not supported by the evidence, the remaining findings are insufficient to support appellate review of the order authorizing a change in the treating physician. We cannot determine what order the ALJ would have entered without the unsupported finding. Consequently, the ALJ's order constitutes an abuse of discretion, and the matter must be remanded for entry of new findings of fact and conclusions of law concerning the claimant's request for a change in the treating physician.
IT IS THEREFORE ORDERED that the ALJ's order dated July 3, 2001, is affirmed insofar as it determines the claimant proved a change of condition which justifies reopening the claim for additional medical benefits.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it ordered payment of temporary disability benefits and a change in the treating physician. The matter is remanded for entry a new order with respect to these issues.
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, 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 April 3, 2002 to the following parties:
Camille Falco, 900 S. Walden Way, #205, Aurora, CO 80017
Wendy's International Inc., P. O. Box 182523, Columbus, OH 43218-2523
Dawn Kaup, American Manufacturers Mutual, P. O. Box 5347, Denver, CO 80217
James A. May, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st Floor, Denver, CO 80202 (For Respondents)
BY: A. Pendroy