Opinion
W.C. No. 4-755-343.
March 9, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Krumreich (ALJ) dated August 21, 2009 that determined that the claimant sustained a compensable injury, and that ordered the respondents to pay for temporary total disability benefits and medical benefits. We affirm.
A hearing was held on the issue of whether the claimant sustained a compensable injury, whether the claimant is entitled to temporary total disability benefits, and whether the respondents are liable for certain medical benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury when on January 4, 2008, she slipped on water and fell. The claimant was seen by Mike Pankey, the safety manager of the employer's health services department, which was the "designated facility" for treatment of work-related injuries. The claimant continued to receive treatment from the health services department over the next two months, during which time she suffered low back pain. On January 10, 2008 the claimant was seen by her personal physician, Dr. Rodriguez. She returned to him in March and complained of low back pain. In April 2008 the claimant was referred to physical therapy and then to Dr. Caton for further evaluation. Dr. Caton diagnosed a contusion of the lumbar spine and buttocks and referred the claimant for a diagnostic EMG. The claimant was then evaluated by Dr. Romagosa, who performed an EMG that resulted in findings of right S-1 radiculopathy. The claimant consulted with Dr. Caton again on June 17, 2008, and the doctor imposed restrictions and referred her to Dr. Smith. The ALJ found that following the imposition of restrictions on June 17, 2008 the claimant was unable to perform her job, and that the employer did not offer her a position that would accommodate those restrictions. The claimant returned to Dr. Rodriguez, who referred her to Dr. Agarwala. He performed surgery on August 13, 2008, after which he stated that the claimant's symptoms and her need for surgery were related to her compensable accident if she had been asymptomatic prior to that time.
The ALJ also summarized the conflicting medical opinions regarding the cause of the claimant's symptoms and need for medical treatment. The ALJ expressly credited the opinions of Dr. Agarwala and Dr. Yamamoto as persuasive and, conversely, rejected the contrary opinions. The ALJ found that the claimant had suffered a compensable injury when she slipped and fell. He awarded temporary total disability benefits after June 17, 2008 and certain medical benefits. He found, however, that the respondents were not liable for the treatment of Dr. Agarwala and Dr. Rodriguez, who were not properly authorized. The respondents appealed the ALJ's order.
The respondents' first two arguments are that the ALJ's order is not supported by applicable law and that his factual findings are not supported by substantial evidence. With respect to the first argument, the respondents contend that the "overwhelming evidence" is that the claimant did not injure her back in a compensable accident and that the ALJ therefore erred in concluding that the claimant carried her burden of showing a compensable injury. The respondents' second argument is that there is no substantial evidence supporting the ALJ's factual findings. We disagree with these arguments.
As the respondents recognize, the claimant had the burden to prove that her disability was proximately caused by an injury arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2009. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995).
Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Moreover, the ALJ's order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Here, contrary to the respondents' arguments, the ALJ's order is amply supported by substantial evidence and by applicable law. Regarding his factual findings, the ALJ found that the claimant slipped on water on the floor and fell, landing on her buttocks and right hip. The ALJ expressly rejected the evidence that her ensuing back pain was caused by an underlying degenerative condition that was not related to her work. There was conflicting medical evidence concerning the cause of the claimant's back condition, and the ALJ expressly resolved the conflicts against the respondents. Thus, he stated that he was persuaded by the opinions of Dr. Agarwala and Dr. Yamamoto that the claimant's slip and fall aggravated her pre-existing back condition. Conversely, he expressly rejected conflicting opinions as not persuasive. The ALJ explained in great detail his reasons for resolving the conflicting evidence in favor of the claimant. Contrary to the respondents' argument, there is ample evidence supporting the ALJ's findings of fact and he properly applied the relevant legal standard. The respondents' argument that the evidence was "overwhelming" in support of their defense is essentially one that the ALJ was compelled after hearing the evidence to reach only a single decision denying the claim. We disagree that after weighing the factual record the ALJ could reach only the single result that the claim was not compensable. Consequently, we reject the respondents' arguments that the order is not supported by substantial evidence or applicable law.
The respondents also argue that the ALJ's order awarding temporary total disability benefits is not supported by applicable law or by substantial evidence. We are unpersuaded by these arguments.
The respondents argue that the claimant was able to perform her regular job and therefore not temporarily disabled until she underwent unauthorized surgery. They reason that the claimant cannot be awarded temporary total disability benefits where the cause of her temporary disability was unauthorized medical treatment. However, it is unnecessary for us to resolve this question, since as we read the ALJ's order, he did not find that the cause of the claimant's disability was the unauthorized surgery. Rather, he expressly credited the restrictions imposed by Dr. Caton following the claimant's visit to her on June 17, 2008. The ALJ found that at that time Dr. Caton imposed restrictions requiring sedentary work with no squatting, bending or climbing. The ALJ found that the claimant had performed modified work since her injury date of January 4, 2008 and that following June 17, 2008 Dr. Caton's restrictions did not permit the claimant to "return to work" at the respondent employer's. By this we understand the ALJ to be finding that the claimant was unable to return to her modified work cleaning tables. The ALJ further found that the employer did not offer the claimant work within the restrictions imposed by Dr. Caton.
The ALJ's findings are supported by substantial evidence in the record, and he correctly applied the relevant legal standard. To prove entitlement to temporary total disability benefits the claimant must prove the industrial injury caused a "disability." Section 8-42-103(1), C.R.S. 2008; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability," as used in workers' compensation cases, connotes two elements. The first is "medical incapacity" evidenced by loss or impairment of bodily function. In the usual circumstances the second element is temporary loss of wage earning capacity, which is evidenced by the claimant's inability to perform his or her prior "regular employment." Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). However, under the circumstances here where the claimant at the time of her claimed entitlement to temporary total disability benefits was working modified employment it would be necessary to demonstrate that the claimant was unable to perform this modified employment. The ALJ found that the claimant's restrictions after June 17th did not permit her to perform the modified employment.
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the modified employment at the time of the change in physical restrictions, is a factual question for the ALJ. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). We must uphold the ALJ's determination if it is supported by substantial evidence. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Here, the ALJ's factual findings are supported by the claimant's testimony and by the medical records of Dr. Caton. See Tr. (3/11/09) at 41; Respondents' Exhibit B; Claimant's Exhibit 4. The ALJ could reasonably infer that the claimant was unable to return to work after the imposition of the further restrictions. This inference supports the award of temporary total disability benefits.
Further, contrary to the respondents' argument, we do not understand the ALJ as having found that the restrictions resulted from the unauthorized surgery. In any event, because the ALJ found that the surgery was reasonable and necessary to cure or relieve the claimant from the effects of the compensable injury, we perceive no basis for denying temporary total disability for the period after the surgery. The question of "authorization" refers to the medical provider's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). Despite the surgeon's unauthorized status, where the procedure was reasonable and necessary then the respondents are liable for any temporary disability following the treatment. Mennonite Hospital v. Corley, 28 Colo. App. 585, 476 P.2d 274 (Colo. App. 1970); See also Colorado Fuel and Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070 (1954).
IT IS THEREFORE ORDERED that the ALJ's order dated August 21, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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MARIA CORDOVA, BRIGHTON, CO, (Claimant)
BUTTERBALL, LLC, LONGMONT, CO, (Employer)
ACE AMERICAN INSURANCE COMPANY, Attn: MR CHAD TURNER, C/O: SEDGWICK CMS, LEXINGTON, KY, (Insurer)
THE LAW OFFICE OF MIGUEL MARTINEZ, Attn: MIGUEL MARTINEZ, ESQ., DENVER, CO, (For Claimant)
THOMAS, POLLART MILLER, LLC, Attn: BRAD J MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents)
THE LAW OFFICE OF MIGUEL MARTINEZ, Attn: MIGUEL MARTINEZ, ESQ., GREELEY, CO, (Other Party)