Opinion
W.C. No. 4-589-175.
May 25, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which ordered them to pay for cervical fusion surgery and temporary disability benefits commencing April 7, 2004. The respondents contend the ALJ misapplied the burden of proof when determining the weight to be assigned the opinion of the Division-sponsored independent medical examination (DIME) physician. The respondents also contend the ALJ erred in awarding temporary total disability (TTD) benefits, in failing to apportion liability based on the claimant's preexisting condition, and by failing to determine the cause of thoracic and lumbar symptoms. We affirm.
The ALJ's findings may be summarized as follows. On July 17, 2003, the claimant sustained a compensable industrial injury to his upper back and left shoulder while lifting a bathtub. Prior to the injury, the claimant had been diagnosed with degenerative disc disease (DDD), arthritic changes of the spine, and spinal stenosis at C5-6 and C6-7. These conditions were symptomatic, and in 2001, one physician recommended that the claimant undergo surgery to include a fusion at the affected cervical levels. However, the claimant elected to undergo conservative treatment and in December 2001, reported complete resolution of his symptoms after 65 days of bed rest.
Following the July 2003 industrial injury, the claimant experienced neck and left shoulder pain. The authorized treating physician (ATP) recommended physical therapy and a course of trigger point and epidural steroid injections (ESI). The last ESI injection was performed in January 2004, and by February 18, 2004, the claimant reported a 75 percent to 85 percent improvement of his symptoms. On April 6, 2004, the ATP placed the claimant at maximum medical improvement (MMI). Noting that the claimant's cervical MRI examinations from 2001 and December 2003 were very similar, the ATP opined the claimant had returned to his pre-injury "baseline" and any residual problems were attributable to the claimant's preexisting condition.
The claimant requested a DIME which was performed in June 2004. The DIME physician opined the claimant was not at MMI because he needed spinal reevaluation including MRI examinations of the cervical, thoracic and lumbar regions. The DIME physician explained that, although he agreed with the ATP that the claimant "was at MMI" on April 6, 2004, the claimant had developed new signs of myelopathy (including sensory changes in the left foot and urinary urgency). During his testimony, the DIME physician added that it has "to be considered" that the injection therapies provided before MMI may have maintained the claimant's "response" to treatment, but the claimant "could not hang on to stability" and deteriorated as soon as the therapies stopped. (Tr. P. 147, 155; Finding of Fact 30).
Based on the ATP's finding of MMI, the respondents terminated the claimant's TTD benefits on April 6, 2004. Following the DIME physician's report, the respondents filed an Application for Hearing to challenge the DIME physician's opinions concerning MMI. By September 2004, it was again recommended that the claimant undergo spinal fusion surgery.
The ALJ concluded that it was the respondents' burden of proof to overcome by clear and convincing evidence the DIME physician's opinion that the claimant was not at MMI. The respondents presented some evidence, including expert medical opinion, that the claimant's symptoms and need for the cervical fusion surgery are attributable to the preexisting degenerative disease process. However, the ALJ was persuaded by the DIME physician's opinion that "it is more probably true that claimant's symptoms were relieved by the ESIs for a period of time before the effects wore off and that the work-related injury caused an inflammatory process in claimant's cervical spine that provoked an anatomical response causing his DDD process to worsen." Therefore the ALJ ordered the respondents to pay for the spinal fusion and to pay TTD and TPD benefits commencing April 7, 2004.
I.
The respondents first contend the ALJ misapplied the burden of proof by requiring them to overcome by clear and convincing evidence the DIME physician's opinion concerning MMI. The respondents argue the DIME physician opined the claimant reached MMI on April 6, 2004, but subsequently worsened. Relying principally on Cordova v. Industrial Claim Appeals, 55 P.3d 186 (Colo.App. 2002), the respondents reason that the DIME physician's opinion concerning whether or not the claimant's condition worsened after MMI is not entitled to the presumptive weight assigned to it by the ALJ. We perceive no error.
Section 8-42-107(8)(b)(III), C.R.S. 2004, provides that the DIME physician's finding concerning MMI shall be overcome "only by clear and convincing evidence." MMI exists when any physical or mental impairment caused by the injury has become stable and no further treatment is reasonably expected to improve the condition." MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002). If the DIME physician issues ambiguous or conflicting opinions concerning MMI, it is for the ALJ to resolve the discrepancy as a matter of fact and determine the DIME physician's true opinion. MGM Supply Co. v. Industrial Claim Appeals Office, supra; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). When ascertaining the DIME physician's true opinion, it is proper to consider not only the report but also any testimony which the DIME physician may give. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo.App. 1998).
If the ALJ's finding concerning the DIME physician's opinion is supported by substantial evidence in the record, it must be upheld on review. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact provided the basis of the order is clear from the findings which are entered. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Although the DIME physician's opinion is ambiguous, we understand the ALJ to have determined that the DIME physician's true opinion is that the claimant did not reach MMI on April 6, 2004, because the injection therapies caused symptomatic improvement while masking the overall deterioration of the claimant's condition. (Finding of Fact 30; Conclusions of Law, paragraph 1 P. 13). In this context, the ALJ plausibly concluded that the DIME physician's "agreement" with the ATP's finding of MMI was simply an opinion that the ATP reasonably believed the claimant was at MMI based on the claimant's April 2004 presentation. However, the DIME physician was persuaded by the subsequent course of events that the claimant did not actually reach MMI on April 6 because he exhibited new symptoms of myelopathy.
It follows the ALJ did not err in assigning the respondents the burden of proof to the to overcome by clear and convincing evidence the DIME physician's finding that MMI had not been attained. The ALJ's findings of fact and conclusions of law demonstrate that this is not a case in which the DIME physician found the claimant reached MMI on a discrete date and then suffered a separate and distinct worsening of condition. While the evidence might have supported this conclusion, it also supports the result reached by the ALJ. Therefore, the principles discussed in Cordova v. Industrial Claim Appeals Office, are inapposite, and the case is more closely analogous to Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
As a corollary to this argument, respondents also argue that the ALJ erred in reinstating the claimant's TTD and TPD benefits on April 7, the day after the claimant allegedly reached MMI. Since we have found the ALJ properly determined the claimant did not reach MMI on April 6, the respondents' arguments, including those based on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), are without merit. City of Colorado Springs concerns the showing necessary if the claimant seeks reinstatement of TTD benefits after reaching MMI.
II.
The respondents next contend the ALJ erred because he did not apportion liability for the claimant's surgery and temporary disability benefits based on the claimant's preexisting cervical spine condition. The respondents rely on Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004), as authority for apportioning medical and temporary disability benefits between an industrial injury and a preexisting non-industrial condition. We find no error.
The ALJ did not specifically address the respondents' apportionment argument. However, on the facts of this case, we consider the issue to be one of law and therefore address it. See § 8-43-301(8) (Panel may determine if order is supported by applicable law); Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (issue of causation may be one of law for determination by court if reasonable minds can draw but one inference from undisputed facts).
The ALJ did not find and the respondents do not now contend that the claimant's preexisting cervical disease was the result of an industrial injury or occupational disease. Instead, the respondents state that the Duncan case allows "apportionment for a preexisting `condition' rather than just a previous industrial disability." (Respondents' Brief at P. 7). Thus, the issue framed by the respondents is whether Duncan authorizes apportionment of medical and temporary disability benefits in cases where the need for such benefits results from the combined effects of a preexisting non-industrial condition which is aggravated or accelerated by the effects of an industrial injury.
We have previously rejected the argument that Duncan stands for the proposition that apportionment may be based on prior non-industrial conditions. The following language from our decision in Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005), is pertinent:
Few principles are more fundamental to the Workers' Compensation Act of Colorado (Act) than the rule that "this state does not distinguish between disabilities that are the result of employment-related aggravation of pre-existing conditions and those that are not." Thus, where a "pre-existing condition is aggravated by an employee's work, the resulting disability is a compensable industrial disability." Subsequent Injury Fund v. Thompson, 793 P.2d 576, 579 (Colo. 1990). A similar expression of the same principle is that the "employer must take the employee as it finds him so that the employer is responsible for any increased disability resulting to an employee from a pre-existing weakened condition." See Cowin Co. v. Medina, 860 P.2d 535, 538 (Colo.App. 1992). At other times our courts stated the rule that a pre-existing condition or disease "does not disqualify a claim if the employment aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which workers' compensation is sought." H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990).
We, like the ALJ, do not read Duncan v. Industrial Claim Appeals Office, supra, as initiating a new rule of law which permits the apportionment of medical expenses to non-industrial conditions where the industrial injury combines with those conditions so as to cause the need for treatment. As Duncan itself recognizes, the prior cases allowing apportionment of medical expenses involve situations where the claimant sustained successive industrial injuries and those injuries actively contributed to the claimant's current need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); State Compensation Insurance Fund v. Industrial Claim Commission, 697 P.2d 807 (Colo.App. 1985). It is significant that in University Park Care Center, one of the "industrial injuries" which provided the basis for apportionment was an occupational disease resulting from the "combination" of the claimant's "work as a nurse and the natural aging process." 43 P.3d at 640. Similarly, in Duncan, the first industrial injury which formed the basis for apportionment "developed from a combination of the natural aging process and a 1977 industrial injury." 107 P.3d at 1000. Thus, in our opinion, Duncan is to be read as holding that the mere presence of a non-industrial factor, such as the "natural aging process," does not prohibit apportionment of medical expenses if the non-industrial factor is an element of a compensable industrial injury by way of aggravation, acceleration, or combination with industrial factors. Duncan merely holds that "the fact that aging is a factor does not preclude apportionment." 107 P.3d 999 (Colo.App. 2004). The case does not hold that all pre-existing non-industrial conditions which contribute to a need for treatment are subject to apportionment.
For these reasons, we conclude Duncan does not present any legal basis for apportionment. Therefore, the ALJ's failure to address this issue is at most harmless error.
III.
The respondents next contend the ALJ erred in failing to determine the cause of the claimant's thoracic and lumbar symptoms. However, the ALJ did not order the respondents to pay any benefits based on the lumbar and thoracic symptoms. Instead, the ALJ found the claimant has not reached MMI for the cervical injury and remains entitled to TTD benefits for that condition, and also ordered the respondents to pay for the cervical surgery. Under these circumstances, the ALJ did not need to address the cause or causes of the thoracic and lumbar symptoms, and his failure to do so was not error. In any event, the order is not final with respect to these issues because the claimant was not denied any benefits based on the thoracic and lumbar conditions, nor were the respondents ordered to pay any benefits based on those conditions. Thus, the order is not final and reviewable with respect to those issues. Section 8-43-301(2), C.R.S. 2004; Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003).
IT IS THEREFORE ORDERED that the ALJ's order dated December 28, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Dona Halsey
Tim A. Fera, Morrison, CO, Resources One, LLC d/b/a Tera Firma, Denver, CO, Jennifer E. Bisset, Esq., Denver, CO, (For Claimant).
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents).