Opinion
W.C. Nos. 4-518-112, 4-619-555.
June 29, 2006.
FINAL ORDER
The respondents seek review of a corrected order of Administrative Law Judge Felter (ALJ) dated December 30, 2005 that reopened the claim and that ordered the respondents to pay medical benefits. We set aside the ALJ's factual finding that the claimant's occupational disease caused no permanent disability. We otherwise affirm the order.
A hearing was held on the issue of the reopening of W.C. No. 4-518-112, which was a claim for a right knee injury incurred while the Kemper Insurance Group (Kemper) insured the employer for purposes of the Workers' Compensation Act. The issue of medical benefits in W.C. No. 4-518-112 was also endorsed for hearing, as were the issues of compensability and medical benefits in W.C. 4-619-555, which was a claim based on an alleged injury or occupational disease occurring on April 15, 2004 when Indemnity Insurance Company (Indemnity) insured the employer.
Following the hearing, the ALJ entered factual findings that may be summarized as follows. On August 31, 2001, the claimant sustained an admittedly compensable injury to his right knee. The claim, which was identified as W.C. No. 4-518-112, closed when the Kemper respondents filed a final admission of liability admitting for a 16 percent scheduled impairment rating, and the claimant did not object. However, on January 12, 2005 the claimant filed a petition to reopen the claim, based upon an alleged worsening of his condition. The claimant reported that his job duties in 2004 aggravated his condition, and the ALJ found that his work "caused a flair of his symptomotology (sic)." The ALJ also found that the claimant sustained an occupational disease with a date of onset of April 16, 2004, (when the employer was insured by Indemnity), but that the "aggravation was of a temporary nature and it did not cause a permanent change in the underlying pathology, anatomy or symptomotology (sic)." The ALJ expressly found that the claimant returned to "his pre-onset base line" as on May 12, 2005. The ALJ then further found that the claimant experienced a worsening of his condition attributable to the August 31, 2001 injury, which began on May 12, 2005 and continued "at least" until July 8, 2005. The ALJ then expressly reserved the issue whether the claimant's continued problems after July 8, 2005, were attributable to the worsening or to the claimant's work at Sara Lee. (Although the ALJ entered no factual finding respecting the commencement of the claimant's subsequent work, July 8, 2005 was apparently the date on which the claimant began work for Sara Lee. See Specific Findings of Fact, Conclusions of Law and Order at 4, ¶ a. (hereinafter Order.)) Finally, the ALJ found that Indemnity was on the risk between April 15, 2004 and May 11, 2005, and Kemper was on the risk between May 12, 2005 and July 8, 2005.
Based upon his factual findings, the ALJ concluded that the claim designated W.C. No. 4-518-112 should be reopened, and that the claim designated W.C. 4-619-555 was a compensable occupational disease that temporarily aggravated the claimant's condition, "with an onset of April 15, 2004, and an ending date of May 11, 2005." Order at 4, ¶ b. The ALJ ordered Indemnity to pay the costs of certain injections the claimant underwent between April 15, 2004 and May 11, 2005 and ordered Kemper to pay for those injections between May 12, 2005 and July 8, 2005. Other issues were reserved for future determination.
By letter dated December 29, 2005 the claimant objected to the ALJ's finding of fact ¶ 9, which found that the claimant's occupational disease was only a temporary aggravation of his underlying condition and did not cause any permanent change in that condition. On December 30, 2005 the ALJ entered a "Corrected Specific Findings of Fact, Conclusions of Law and Order," in which he stated that ¶ 9 was "indispensable" to resolving the respective parties' liability for medical benefits and that the order was being "re-issued without modification."
The Kemper respondents appealed and raise four arguments. They contend that the ALJ erred in reopening W.C. No. 4-518-112, that the ALJ erred in finding that the claimant returned to his "baseline" condition by May 12, 2005, that the ALJ erred in determining that Kemper was liable for medical benefits after May 12, 2005, and that the issue of whether the claimant sustained any permanent impairment from his occupational disease in W.C. 4-619-555 was not ripe.
I.
The Kemper respondents first argue that the ALJ erred in reopening W.C. No. 4-518-112, because no additional benefits were sought or awarded, other than maintenance medical benefits already admitted to in the Kemper respondents' final admission. We disagree that the ALJ erred in reopening the claim.
Generally, the authority to reopen a claim under § 8-43-303(1), C.R.S. 2005, is discretionary with the ALJ. Thus, we may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse of discretion is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Moreover, whether the claimant's condition is due to the natural progression of the pre-existing condition or a new industrial accident is one of fact for resolution by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Further, the questions of whether the claimant proved a worsened condition, and that the worsening was causally related to the industrial injury, are factual in nature. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; Chavez v. Industrial Commission, 714 P.d. 1328 (Colo.App. 1985).
We are bound by the ALJ's factual determinations in this regard if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.d. 524 (Colo.App. 1996). We note that expert medical opinion is not needed to prove causation where circumstantial evidence supports an inference of a causal relationship between the injury and the claimant's condition. Savio House v. Dennis, 665 P.d. 141 (Colo.App. 1983). Where conflicting expert opinion is presented, it is for the ALJ as fact-finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
Here, it appears undisputed that the record contains substantial evidence supporting the factual findings relevant to the ALJ's determination that the claimant's condition had worsened. In any event, the claimant's testimony concerning the course of his symptoms, in conjunction with the opinions of Dr. Aschberger that the claimant's condition had worsened by April 2004, supports the ALJ's inference that the worsening of the claimant's condition was at least partially attributable to his compensable injury in 2001. Hence, substantial evidence supports the factual findings underlying the ALJ's order reopening the claim.
Moreover, insofar as the Kemper respondents rely on Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000) to argue that the ALJ erred in reopening the claim because no benefits could be awarded after reopening, we disagree. Contrary to the respondents' argument, we do not read Richards v. Industrial Claim Appeals Office, supra, as precluding reopening here. In Richards the court addressed the question whether a claim could be reopened to obtain additional temporary disability benefits because of a change in medications, when the claimant otherwise remained at MMI. The court held that the claim could not be reopened for that purpose, where the claimant continued to be at MMI. Thus, the court stated its holding that "[r]eopening a case is not warranted if, once reopened, no additional benefits may be awarded." Richards, 996 P.2d at 758 (emphasis added). In our opinion, the holding in Richards was based upon the principle that temporary disability benefits were legally precluded following the reopening because the Act prohibits the payment of temporary disability benefits following maximum medical improvement. In the present case there is no suggestion that "once reopened" all further benefits are precluded. Indeed, the ALJ in this case awarded medical benefits beyond the Grover medical benefits admitted to by Kemper. The claimant presented evidence that his condition worsened after MMI, and that the need for additional treatment was due to the worsened condition, therefore the claim may be reopened for the purpose of awarding additional medical benefits. Brickell v. Business Machines, Inc., 817 P.2d 536 (Colo.App. 1991); Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). Hence Richards is not a legal bar to reopening this claim.
II.
Kemper's remaining arguments are addressed to the finding that the effects of the occupational disease in W.C. 4-619-555 were temporary, and ended on May 11, 2005 without causing any further temporary or permanent disability. Specifically, the Kemper respondents argue that the ALJ erred in finding that the claimant's condition returned to its "baseline" condition as of May 12, 2005, that he erred in finding that medical benefits after that date were the liability of Kemper, and that the claim was not ripe for a determination of whether the occupational disease caused any permanent disability. We agree with Kemper's last argument that permanent partial disability was not a ripe issue. Otherwise, we are unpersuaded that the ALJ committed reversible error.
In our view Kemper's arguments are similar to those advanced by the respondents and rejected in Hunteman v. Weld County School District No. 6, W.C. No. 4-213-422 (June 12, 2002). In Hunteman the claimant injured her back in 1994 in a compensable accident (for which Pinnacol Assurance was liable) and then aggravated her condition in 1997, at a time when the employer had become self-insured. The ALJ found that the 1997 injury was a "compensable exacerbation" of the claimant's pre-existing condition, and that she returned to her "baseline condition" shortly after the injury. The ALJ held the Pinnacol respondents liable for all medical treatment except that in connection with an examination at the time of the "compensable exacerbation." The Pinnacol respondents argued that the self-insured employer was liable for medical treatment after the date of the compensable aggravation, because the finding that the 1997 aggravation was only temporary was, in reality, a constructive finding of maximum medical improvement, which is a violation of § 8-42-107(8)(b), C.R.S. 2005. See Lissauer v. Arapahoe House, W.C. No. 4-208-1212 (November 26, 1997) aff'd. Arapahoe House v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2132, July 9, 1998) (not selected for publication) (finding that temporary aggravation ended was an implicit finding of MMI and was impermissible).
We rejected the respondents' argument in Hunteman, reasoning that the ALJ has authority to determine which of two or more injuries or occupational diseases caused the need for particular medical treatment. Moreover the ALJ may make this determination without running afoul of the principle that only the authorized treating physician may place the claimant at maximum medical improvement and determine permanent impairment pursuant to § 8-42-107(8), C.R.S. 2005. We stated in Hunteman that "[w]e have previously concluded that § 8-42-107(8)(b) imposes no barrier to an ALJ's determination of which of two injuries caused the need for medical treatment so long as the ALJ does not purport to determine MMI for one of the injuries in violation of the statute." Here, as we read the ALJ's order, he determined that the need for medical treatment prior to May 12, 2005 was caused by the occupational disease which, in turn, was caused by the work the claimant was then performing. Conversely, between May 12, 2005, and July 8, 2005 the need for medical treatment was caused by the worsened condition in W.C. No. 4-518-112. The ALJ properly assigned liability for medical benefits where the claimant sustained successive injuries or diseases to the same body part. See also Ward v. Sievers Instruments. W.C. No. 4-301-616 (August 17, 1998); Ward v. Sievers Instruments. W.C. No. 4-301-616 (January 27, 1999); Simpson v. Miller Specialties, W.C. No. 382-946 (April 29, 1999). It follows that we also reject the Kemper respondents' argument that they may not be liable for medical benefits after May 12, 2005 because there was no evidence that Kemper was "on the risk." The basis for Kemper's liability was that the need for medical treatment was attributable to the worsening of the 2001 injury, for which they were liable.
Insofar as Kemper argues that there is no support in the record for the ALJ's finding that the claimant returned to "baseline" by May 11, 2005, we reject that argument. The Kemper respondents concede that Dr. Aschberger's report describing his examination of the claimant on May 12, 2005 states that "[c]urrently Mr. Fister is back to his baseline level." However, the Kemper respondents argue that the basis for Dr. Aschberger's opinion was the history related by the claimant, and that subsequent questioning of the claimant establishes that the doctor's opinion was erroneous. However, it is solely the ALJ's prerogative to weigh the evidence, and to resolve inconsistencies and contradictions. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). The respondents' argument addresses the weight to be afforded the evidence, and we are not at liberty to interfere with the ALJ's weighing of that evidence.
However, we agree with Kemper that the ALJ's finding that no permanent disability was caused by the occupational disease was premature and entered without jurisdiction to do so. We noted in Hunteman that "[b]ecause the ALJ did not purport to determine MMI or permanent impairment, the ALJ's order does not violate § 8-42-107(8)(b)." (emphasis added.) Here, the ALJ erroneously concluded that the finding concerning permanency was "indispensable" to a determination regarding the cause of the need for medical benefits. However, because in our view the finding was not dispositive it is unnecessary to remand the matter for further proceedings; rather, it is sufficient merely to modify the order by striking that portion of the finding in paragraph 9 referring to permanent changes in the claimant's condition.
IT IS THEREFORE ORDERED that the ALJ's order dated December 30, 2005, is modified so that the finding that the occupational disease "did not cause a permanent change in the underlying pathology, anatomy or symptomotology (sic)" is set aside.
IT IS FURTHER ORDERED that the ALJ's order dated December 30, 2005, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Robert Fister, Loveland, CO, Interstate Brands Corporation, Denver, CO, Pam Hsieh, Kemper Insurance Group, Denver, CO, Teri Kinkade, Indemnity Insurance Co., Portland, OR, Neil D. O'Toole, Esq., Denver, CO (For Claimant).
Lawrence D. Blackman, Esq., Denver, CO, (For Respondents Interstate Brands Corporation and Kemper Insurance Group).
Richard A. Bovarnick, Esq., Denver, CO, (For Respondents Interstate Brands Corporation and Indemnity Insurance Co.).