Opinion
W.C. No. 4-428-645.
June 20, 2003.
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Klein (ALJ) which awarded temporary total disability (TTD) benefits and determined the claimant's average weekly wage (AWW). The respondent contends the claimant is not entitled to TTD benefits because the claimant was at fault for the loss of her employment, and because the wage loss was not caused by the injury. The claimant also disputes the ALJ's decision to increase the claimant's AWW based on post-injury earnings. We affirm.
The claimant, a men's wardrobe consultant, sustained compensable injuries to her right wrist, right shoulder, neck and head on November 29, 1997. At the time of the injury, the claimant's admitted AWW was $504.45.
After the injury, the claimant continued her employment with the respondent until she underwent wrist and shoulder surgery on August 6, 1998. The claimant remained off work until September 15, 1998. Following the injury, and after her return to work, the claimant earned more than the admitted AWW.
The claimant remained employed until August 15, 1999. The claimant quit her employment because, she testified, she was experiencing increased upper extremity pain, depression, and could not continue performing the regular duties of her job. The ALJ also found that from September 15, 1998 to August 15, 1999, the claimant was medically restricted from lifting more than 5 pounds.
Thereafter, the claimant continued receiving treatment for her injuries. However, on April 19, 2000, one treating physician opined the claimant was at MMI. A second treating physician placed the claimant at MMI on August 16, 2000.
The claimant was also receiving treatment from a third treating physician, Dr. Oster. In November 2000, Dr. Oster imposed a 5 pound lifting restriction. In January 2002, Dr. Oster performed surgery on the claimant's wrist to relieve pain and increase function. This surgery had been delayed because the claimant developed reflex sympathetic dystrophy (RSD).
On April 11, 2002, the claimant underwent a Division sponsored independent medical examination (DIME) on the issues of MMI and impairment. The DIME physician's "summary sheet" placed the claimant at MMI on April 11, 2002. However, in the narrative report, the DIME physician opined the claimant "might benefit from some further therapy," including trigger point injections and myofascial release therapy. The DIME physician also stated the claimant was at MMI if she elected not to undergo further psychological treatment for her depression, and that he recommended the other "modalities as part of a medical maintenance program."
After the DIME, the claimant continued treatment with Dr. Oster. She received treatment for a post-surgical flare-up of the RSD, including injections. Dr. Oster testified the claimant was improving with treatment and needed additional time to reach MMI, and ultimately would require a functional capacities evaluation (FCE). (Oster Depo. Pp. 16-18, 48, 57-58). The claimant also underwent psychological treatment after the DIME, and the treating psychiatrist placed the claimant at "psychological MMI" on August 20, 2002.
Prior to the hearing, the parties reached a settlement concerning the claimant's entitlement to TTD benefits prior to August 16, 2000. The issue for hearing concerned the claimant's entitlement to benefits after that date. The ALJ found the claimant terminated her employment on August 15, 1999, because the effects of the injury rendered her unable to continue performing the regular duties of her employment. Thus, the ALJ rejected the respondent's contention the claimant's post-separation wage loss resulted from the claimant's decision to quit her job and move to California.
The ALJ also found the claimant overcame the DIME physician's finding of MMI by clear and convincing evidence. In this regard, the ALJ credited evidence that the claimant was continuing to improve with treatment by Dr. Oster (and his referrals) after April 11, 2002. The ALJ further found the DIME physician was "equivocal" concerning whether the claimant was at MMI from a physical perspective, and believed the claimant could benefit from further treatment modalities if they were made available. Finally, the ALJ found the claimant in fact underwent the psychological treatment suggested by the DIME physician. Under these circumstances, the ALJ awarded TTD benefits commencing August 16, 2000.
Finally, the ALJ increased the claimant's AWW for the TTD benefits payable after August 16, 1999. This increase in the AWW was based on the ALJ's finding that the claimant's earnings increased when she returned to work after the injury, and the conclusion that it would be unfair to base the claimant's TTD benefits on the admitted AWW.
I.
On review, the respondent disputes the ALJ's finding that the claimant's wage loss after the separation from employment was caused by the injury. In essence, the respondent argues the medical records show the claimant quit to move to California and, therefore, the subsequent loss of wages was caused by her personal choice. The respondent cites a medical report that the claimant moved to California to be near her daughter, and one which indicates the claimant believes she is financially secure without working. The respondent also argues it was not given an opportunity to offer the claimant light duty employment. We find no error.
Initially, we note this case is governed by the law as it existed under PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), not the termination of employment statutes contained is § 8-42-103(1)(g), C.R.S. 2002 and § 8-42-105(4), C.R.S. 2002; 1999 Colo. Sess. Laws, ch. 90 at 266. Under the applicable law, the claimant is entitled to TTD benefits if the claimant proves the injury caused disability, the claimant left work as a result of the injury, and the disability lasted more than threes regular working days. Section 8-42-103(1)(a), C.R.S. 2002; PDM Molding Inc. v. Stanberg, supra; Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). In order to establish "disability," the claimant must prove some form of medical incapacity evidenced by loss of bodily function, and that the medical incapacity has caused disability in the sense of inability to resume the pre-injury employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); Hendricks v. Keebler Co. W.C. No. 4-373-392 (June 11, 1999).
The question of whether the claimant proved the injury caused disability is a threshold issue of fact for determination by the ALJ. Disability may be proven by lay evidence alone, although medical evidence is certainly relevant. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Because the issue is factual in nature, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and 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 claimant testified that she left work in August 1999 because she was no longer able to perform the duties of her regular employment, not because she intended to move to California to be with her daughter. (Tr. Pp. 58, 61, 65, 91). The ALJ implicitly credited this testimony. (Finding of Fact 8).
Further, the ALJ found the claimant was under a five-pound lifting restriction after returning to work in September 1998. (Finding of Fact 6). We consider this to be a plausible inference from Dr. Oster's testimony that the five-pound restriction he imposed in October 2000 was "something [he] sort of rubber-stamped that had come with her." (Oster Depo. pp. 7-8). Moreover, Dr. Abels stated on April 19, 2000, that the claimant "would be able to continue her usual work duties with modification so that the left hand would be used most dominantly to avoid pressure, contact, hypersensitivity on the right hand/forearm." (Emphasis added). Thus, there is ample evidence the claimant was disabled from performing her usual job duties when she left employment in August 1999, and the disability was caused by the injury. Although there was some evidence to the contrary, that fact affords no basis for interfering with the ALJ's resolution of conflicts in the evidence and inferences drawn from this record. Lymburn v. Symbios Logic, supra.
Further, these findings support the ALJ's determination that the claimant was not "at fault" for the termination of the employment within the meaning of PDM Molding, Inc. v. Stanberg, supra. (Finding of Fact 8). The ALJ found the cause of the separation was not the claimant's personal decision to leave the employment, but the disabling effects of the injury itself. Consequently, the record fully supports the order. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680, 686 (Colo.App. 1999) (claimant not at fault for loss of employment when discharged for "popping the clutch" on a truck, and the claimant's action was caused by weakness stemming from the industrial back injury).
The respondent asserts the claimant quit without affording the respondent an opportunity to offer light duty. However, there is no statutory requirement that the claimant afford the employer the opportunity to offer light duty before terminating employment which the claimant is unable to perform. Indeed, if the respondent wished to offer light duty to the claimant it was always free to do so, and the claimant would have been subject to the loss of TTD benefits if she failed to begin work after a qualifying offer. Section 8-42-105(3)(d)(I), C.R.S. 2002; cf. Gregg v. Lawrence Construction Co., W.C. No. 4-475-888 (April 22, 2002), aff'd., Lawrence Construction Co. v. Industrial Claim Appeals Office, (Colo.App. No. 02CA0926, January 30, 2003) (not selected for publication). Certainly by August 16, 2000, the respondent was aware the claimant was alleging that she left work because of the injury and was entitled to TTD benefits. Indeed, in October 2000, the respondent compromised a claim for TTD benefits for the period entire period of time before August 16, 2000. Nevertheless, as the ALJ found, the respondent never offered the claimant light-duty employment.
The respondent's arguments that the claimant is not entitled to TTD because she earned greater income after she returned to work following the 1998 surgery, and because she admits she is financially stable without working, are without merit. As noted, the claimant's burden of proof is to establish work-related disability. Once this is done, the claimant is entitled to TTD benefits as measured by the loss of wages reflected in the AWW. The claimant is under no duty to search for alternative employment within her restrictions, and the hypothetical ability to perform some other job is immaterial. Black Roofing Co. v. West, 967 P.2d 195 (Colo.App. 1998); Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). Moreover, the fact that the claimant earned greater income before she became disabled in August 1999 merely highlights the extent of the claimant's loss after she could no longer work.
We can draw no inference or conclusion from the fact the claimant settled the claim for TTD prior to August 16, 2000. The stipulation does not address the reasons for the parties' decision to settle, and we may not speculate concerning the reasons.
II.
The respondent next contends the ALJ erred in determining the claimant overcame by clear and convincing evidence the DIME physician's finding that the claimant reached MMI on April 11, 2002. The respondent argues the ALJ erred in finding the DIME physician's opinion concerning MMI was "ambiguous" with respect to "physical MMI." (Finding of Fact 19). The respondent also contends the opinions of Dr. Oster were not of sufficient weight to overcome the DIME physician's opinion. We find no error.
The DIME physician's finding of MMI must be overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2002. The question of whether the DIME physician's finding of MMI has been overcome by sufficient evidence is one of fact for determination by the ALJ. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). This is an exceedingly narrow standard of review which does not permit us to reweigh the evidence. Further, the ALJ is the sole arbiter of conflicts in the medical evidence. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra, Metro Moving and Storage Co. v. Gussert, supra.
Under the statute, MMI exists when "the medically determinable physical or mental impairment as a result of injury has become stable and no further treatment is reasonably expected to improve the condition." We note that if a DIME physician's opinion concerning MMI is subject to conflicting inferences, the ALJ may resolve the inconsistency as an issue of fact. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here, as we understand the ALJ's order, he found the DIME physician's actual opinion was that the claimant was not at "physical MMI" on April 11, 2002, because the claimant would "benefit" from additional pain treatment. (Finding of Fact 19). Further, the claimant was not at "psychological MMI" because the claimant would benefit from additional psychological treatment if she was willing to undergo it. (Finding of Fact 21). Nevertheless, the ALJ placed the burden of proof on the claimant to overcome the DIME physician's opinion that the claimant was at MMI on April 11. This apparent error in the assignment of the burden of proof was harmless since it inured to the respondent's benefit.
The respondent's argument notwithstanding, the record supports the ALJ's finding that the DIME physician's opinion was "equivocal" concerning whether the claimant was at "physical MMI." On the one hand, the DIME physician opined the claimant might benefit from additional treatment modalities, including injections and myofascial release, to relieve head and neck pain and improve range of motion. On the other hand, the DIME physician characterized these treatment "modalities" as "medical maintenance" care.
A recommendation for therapies which present a reasonable prospect for improving physical function may be viewed as evidence that the claimant's condition is not stable and the resulting impairment not yet measurable. Therefore, such treatment recommendations are inconsistent with MMI. Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990) (recommendation for surgery which had potential to affect claimant's physical restrictions and disability rating inconsistent with MMI); Dziewior v. Michigan General Corp., 672 P.2d 1026 (Colo.App. 1983) (claimant not at MMI where willing to undergo pain clinic treatment which had reasonable prospect of alleviating pain syndrome); Sotelo v. National By-Products, Inc., W.C. No. 4-320-606 (March 2, 2000) (finding that claimant was entitled to physical therapy which could improve functional capacity was inconsistent with finding of MMI). Of course, it is also true that treatment which is provided merely to maintain the claimant's condition by preventing deterioration, or to relieve continuing symptoms, is not inconsistent with MMI and may be awarded thereafter. See Hanna v. Print Expediters, Inc., __ P.3d __ (Colo.App. No. 02CA2237, June 5, 2003).
Here, the ALJ plausibly interpreted the DIME physician's report as reflecting an opinion that the claimant's condition was not stable because the suggested treatment modalities had a reasonable prospect of improving the claimant's function by further reducing pain and adding range of motion. While that interpretation is undercut by the DIME physician's description of these modalities as part of a "maintenance program," the ALJ acted properly in resolving the inconsistency against the respondent and in favor of the claimant. Cf. Town of Ignacio v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA2024, November 7, 2002) (statement of treating physician that claimant was at MMI but "might consider" surgery if pain continued created ambiguity raising question of fact concerning whether or not physician placed claimant at MMI).
Moreover, the ALJ properly relied on Dr. Oster's opinions as a basis for finding the claimant was not at MMI. Dr. Oster opined the claimant was not at MMI because she needed additional treatment for a flare-up in her RSD, because insufficient time had passed since the January 2002 surgery to properly gauge the claimant's condition, and because an FCE was needed before the claimant was placed at MMI. The weight to be assigned Dr. Oster's opinions was an issue for the ALJ, and may not be interfered with on review. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. The fact that Dr. Oster agreed that various physicians could have conflicting opinions on the issues goes to the weight of his testimony, and did not require the ALJ to conclude it was of insufficient weight to overcome the DIME physician.
III.
Finally, the claimant contests the ALJ's decision to increase the claimant's AWW over that admitted by the respondents. The basis of the ALJ's action was the fact that the claimant earned increased income after she returned to work following the 1998 surgery, and the conclusion that it would be unfair to limit her TTD benefits based on the earnings at the time of the injury. For the reasons stated in the ALJ's order, we perceive no abuse of discretion in the ALJ's decision. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated December 9, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 20, 2003 to the following parties:
Nancy Gebert, 27103 Pacific Highway South, #157, Des Moines, WA 98198-9250
Nordstrom, Inc., 8465 Park Meadows Ctr. Dr., Littleton, CO 80124
Mea Conn, Nordstrom — NW Risk Management, P. O. Box 21865, Seattle, WA 98111-3865
Lawrence D. Blackman, Esq., 999 18th St., #1755, Denver, CO 80202 (For Claimant)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondent)
By: A. Hurtado