Opinion
W.C. No. 4-522-932.
April 19, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which reopened the claim and awarded medical and temporary total disability (TTD) benefits. The respondents contend the evidence does not support the finding of a worsened condition, and that the claimant is attempting an impermissible "constructive challenge" to an authorized treating physician' finding of maximum medical improvement (MMI). The respondents also contend the evidence does not support an award of additional TTD Benefits. We affirm.
The claimant sustained an injury to her left upper extremity on June 25, 2001. After a course of conservative therapy an authorized treating physician, Dr. Olsen, placed her at MMI with a diagnosis of lateral epicondylitis "secondary to cumulative trauma." Dr. Olsen assigned a 7 percent upper extremity rating and the respondents filed an uncontested Final Admission of Liability based on the report.
The claimant testified that after MMI she experienced increased symptoms in the extremity including pain radiating into her shoulder and neck, weakness, and tingling in her fingers. She stated that these symptoms caused her to drop things and rendered her less able to perform activities than she was in May 2002.
In September 2003, the claimant was diagnosed with reflex sympathetic dystrophy. In July 2004 Dr. Coleman opined the claimant is suffering from cubital tunnel syndrome, left interosseous nerve compression and radial tunnel syndrome. He recommended surgery consisting of "transposition/decompression of the ulnar nerve" and "endoscopicarpal tunnel release."
Based on this evidence, the ALJ found the claimant proved a worsened condition caused by the industrial injury, and ordered that the claim be reopened. The ALJ found reopening is supported by the claimant's credible testimony concerning increased symptoms after MMI, and the recommendation for surgery by Dr. Coleman. The ALJ also concluded the claimant's testimony established "additional limitations" in her "functional abilities" which support the conclusion that she has sustained a "greater impairment of her earning capacity than existed at MMI." Consequently the ALJ ordered the respondents to provide the surgery recommended by Dr. Coleman and pay TTD benefits commencing April 6, 2004.
I.
The respondents contend the ALJ erred in reopening the claim based on worsened condition because the "claimant is presenting a dispute of her diagnosis as the basis for reopening." Essentially, the respondents argue that when Dr. Olsen placed the claimant at MMI he diagnosed lateral epicondylitis, and the claimant did not challenge that diagnosis by requesting a Division-sponsored independent medical examination (DIME). According to the respondents, the petition to reopen based on the subsequent diagnoses of RSD and nerve entrapments constitutes an impermissible "constructive challenge" to Dr. Olsen's MMI determination. We disagree.
Section 8-43-303(1), C.R.S. 2004, permits a claim to be reopened based on a worsened condition. In order to reopen the claimant bears the burden of proof to establish the worsening of a physical or mental condition which is causally-related to the original industrial injury, and proof of causation is not restricted to medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Reopening is appropriate when the degree of permanent disability has changed, or when the claimant is entitled to additional medical or temporary benefits. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). The ALJ is granted wide discretion in determining whether the claimant met the burden of proof, and we must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000).
Substantial evidence is that quantum of probative evidence which supports a reasonable belief in the existence of a fact without regard to conflicting evidence or contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Thus, when applying the substantial evidence test we must 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).
Here, there is ample evidence to support the ALJ's finding that the claimant proved a worsened condition caused by the industrial injury. The claimant reported a post-MMI increase in symptoms and loss of function. Dr. Coleman made additional diagnoses which were not present when the claimant was originally placed at MMI by Dr. Olsen. Further, Dr. Coleman recommended surgery for the claimant's symptoms, evidencing the need for additional treatment. It is true that Dr. Coleman stated he could not tell if the claimant's symptoms increased after MMI, but that was merely one factor for the ALJ to consider. The fact that some evidence and inferences might support a different result affords no basis for relief on appeal.
The respondents' contention notwithstanding, the ALJ's order does not represent an impermissible "constructive challenge" to Dr. Olsen's initial finding of MMI. Under § 8-42-107(8)(b)(III), C.R.S. 2004, an authorized treating physician's finding of MMI becomes binding on the parties unless timely challenged pursuant to the DIME process. Section 8-42-107(8)(b)(II), C.R.S. 2004, § 8-42-107.2(2)(b), C.R.S. 2004; Ames v. Industrial Claim Appeals Office, 89 P.3d 477 (Colo.App. 2003). However, the DIME process does not govern the determination of whether the claimant's condition has worsened after MMI, and whether such worsening is causally-related to the industrial injury. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 190 (Colo.App. 2002). Indeed, MMI concerns a "point in time" at which permanent impairment is determinable and the claimant's condition has become stable. Section 8-40-201(11.5), C.R.S. 2004.
For these reasons, the ALJ's order finding the claimant's condition worsened after MMI does not constitute a "constructive challenge" to the Dr. Olsen's finding of MMI. Dr. Olsen merely determined that at a single "point in time," May 31, 2001, the claimant's condition was stable and the claimant's impairment was determinable. Dr. Olsen's finding of MMI did not legally or factually rule out the possibility that the claimant's condition could subsequently worsen as evidenced by additional symptoms and diagnoses and the need for additional treatment. Indeed, Dr. Olsen's May 31 report describes lateral epicondylitis as the "most likely diagnosis at this point." (Emphasis added).
Ayala v. Conagra Beef Co., W.C. No. 4-579-880 (July 22, 2004), cited by the respondents, is inapposite. In that case, the claimant attacked the treating physician's finding of MMI by retaining additional physicians who disagreed with the treating physician's diagnosis. There was no allegation in Ayala, as there is here, that the claimant's condition worsened after MMI. Consequently the claimant in Ayala attempted to circumvent the DIME process through an impermissible "constructive challenge" to the treating physician's MMI determination. Cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). In this case the claimant did not attempt to circumvent the DIME process but exercised the statutory right to reopen based on worsened condition.
II.
The respondents next contend the ALJ erred in awarding TTD benefits. Citing City of Colorado Springs v. Industrial Claim appeals Office, 954 P.2d 637 (Colo.App. 1997), the respondents argue there is no evidence of "increased physical restrictions" which could justify an award of TTD. We disagree.
In City of Colorado Springs the court held that in order to receive TTD benefits based on a change of condition reopening, the claimant must show increased restrictions which result in a "greater impact on the claimant's temporary work capacity tan he had originally sustained as a result of the" injury. (Emphasis in original); 954 P.2d at 639-640. However, disability need not be proven by medical evidence. Lymburn v. Symbios Logic, supra.
Here, the claimant testified to increased symptoms which caused her to drop things more often and prevented her from doing the things she used to do. (Tr. P. 10). Dr. Coleman's note of December 12, 2003, reflect the claimant reported "significant pain with lifting, twisting, and lifting [sic] more than five pounds." The ALJ inferred from this evidence that the claimant had increased physical limitations which impaired her access to the labor market to a greater extent than existed on the date of MMI. Because this constitutes a plausible inference drawn from the evidence, we may not interfere with it. Lymburn v. Symbios Logic, supra; Goble v. Sam's Wholesale Club, W.C. No. 4-297-675 (May 3, 2001), aff'd., Sam's Wholesale Club v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0943, May 9, 2002) (not selected for publication).
IT IS THEREFORE ORDERED that the ALJ's order dated October 27, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Debra Hague, West Jordan, UT, Duckwall-Alco Stores, Inc., Buena Vista, CO, Liberty Mutual Insurance Company, Englewood, CO, Jeffrey S. Auxier, Esq., Salida, CO, (For Claimant).
David G. Kroll, Esq., Denver, CO, (For Respondents).