Opinion
W.C. No. 4-382-985
February 5, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) which determined the claimant is not at maximum medical improvement (MMI) and ordered the respondents to provide additional medical and temporary disability benefits. We affirm the award of medical benefits, set aside the award of temporary disability benefits, and remand the matter for additional findings.
The claimant began working for the respondent-employer OEA Inc. (OEA) in 1997. On May 17, 1998, the claimant reported pain, burning, and a pulling sensation in her thumbs and wrists. The ALJ found the claimant also experienced pain and other symptoms in her neck and back. The respondents admitted liability for temporary total disability benefits commencing May 19, 1998.
The injury was treated by Dr. Katz, who diagnosed bilateral carpal tunnel syndrome (CTS) and referred the claimant to Dr. Snively for further treatment. On July 27, 1998, Dr. Snively released the claimant to modified work which did not require repetitive use of the right arm. The ALJ found that on August 13, 1998, OEA offered the claimant modified work which she accepted. There was evidence that the claimant could perform the modified work with her left hand. The claimant testified that she was not having problems with her left hand at that time, but she was afraid of a reinjury and therefore quit the employment in August 1998. (Tr. November 8, 1999, p. 25). The claimant subsequently went to work in a restaurant where she earned less than she was earning with OEA. Consequently, the claimant requested temporary partial disability benefits.
The ALJ found that the claimant stopped working for OEA because she could not perform the modified work "due to pain" from the industrial injury. The ALJ also found that the claimant required help to perform her duties at the restaurant, and that due to the claimant's Ethiopian culture which regards the left hand as unclean, she could not publicly rely on her left hand to compensate for disability caused by problems with her right arm, neck, and back. Based on these findings, the ALJ concluded the claimant is entitled to temporary partial disability benefits commencing August 11, 1998.
Dr. Katz placed the claimant at MMI on March 16, 1999. The claimant disputed Dr. Katz's opinion and requested a Division-sponsored independent medical examination (DIME) under the provisions of § 8-42-107(8)(b)(II), C.R.S. 2000. The DIME was performed by Dr. Burkhardt, who is a neurologist. Dr. Burkhardt opined the claimant is suffering from a neurological injury to the cervical spine which "probably began as a repetitive injury syndrome." Furthermore, Dr. Burkhardt opined that the claimant required additional diagnostic testing and treatment of the injuries, and that the claimant therefore was not at MMI.
The respondents requested a hearing to overcome Dr. Burkhardt's finding of a causal relationship between the industrial injury and the claimant's neck and back problems. In support, the respondents presented the testimony of Dr. Orent, who disagreed with Dr. Burkhardt's diagnosis and recommendations for further treatment.
Implicitly crediting the claimant's testimony, the ALJ found the claimant reported her neck and back problems to Dr. Katz and Dr. Snively, and that neither doctor attempted to address the problems. Furthermore, the ALJ was not persuaded by Dr. Orent's testimony that Dr. Burkhardt erred in finding a causal connection between the industrial injury and the claimant's untreated neck and back problems. Therefore, the ALJ found the respondents failed to overcome Dr. Burkhardt's opinion the claimant was not at MMI.
I.
On review, the respondents first contend the ALJ erroneously awarded temporary partial disability benefits. Relying on § 8-42-105(3)(d)(I), C.R.S. 2000, and Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998), the respondents contend the claimant's entitlement to temporary disability benefits terminated when she failed to begin the offer of modified employment. The respondents also contend that the claimant's cultural prohibition from using her left hand does not justify the award of benefits. We conclude the ALJ's findings of fact are insufficient to permit appellate review and, therefore, we remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2000; Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
Once the respondents admit liability for temporary disability benefits, payments must continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 2000. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1624, June 22, 2000). Section 8-42-105(3)(d)(I) provides that temporary disability benefits terminate when:
"the attending physician gives the claimant a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment."PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), provides that even if the claimant is at fault for the loss of modified employment, the claimant may receive temporary disability benefits in connection with the subsequent wage loss, provided the claimant reestablishes a causal connection between the wage loss and the injury. The causal connection is reestablished by proving the industrial injury contributed "to some degree" to the wage loss. Cf. § 8-42-105(4), C.R.S. 2000, which is applicable to injuries occurring on or after July 1, 1999.
In Laurel Manor Care Center v. Industrial Claim Appeals Office, supra, a temporarily disabled claimant returned to work, but left the same day because she believed the employer was requiring her to perform duties beyond her restrictions. The following day, the claimant returned to the job site and was presented with a written offer of employment listing duties within her medical restrictions. However, the claimant did not return to work after being presented with the offer. The Court of Appeals held that in the absence of proof the modified offer was unreasonable, the claimant's failure to begin the modified employment triggered the termination of temporary total disability benefits under the predecessor statute to § 8-42-105(3)(d)(I). The court held that the PDM analysis did not apply to these circumstances, and that the claimant was not entitled to further temporary disability benefits regardless of whether the subsequent wage loss was "to some degree" the result of the industrial injury. The rationale for Laurel Manor is to preclude the claimant from avoiding the effect of § 8-42-105(3)(d) by refusing to accept a written offer of employment, and then relying on the continuing relationship between the wage loss and the injury to obtain temporary disability benefits unless the employer proves that modified employment remains available to the claimant.
We have previously held that Laurel Manor is limited to cases involving written offers of modified employment under § 8-42-105(3)(d)(I), and does not apply to the termination of benefits under § 8-42-105(3)(b) (return to regular or modified employment). Rather, we concluded that where the claimant returns to modified employment and subsequently loses that employment, the claimant's entitlement to further temporary disability benefits is governed by PDM. See Vawser v. Liberty Heights, W.C. No. 4-389-893 (November 13, 2000); Dickerson v. Norwest Corporation, W.C. No. 4-288-686 (December 14, 1998); Gonzales v. Vaughn Concrete Products, Inc., W.C. No. 4-329-353 (July 15, 1998). We adhere to that view.
Here, the ALJ found, and it is undisputed, that OEA offered the claimant modified employment within the medical restrictions imposed by Dr. Snively. However, the ALJ did not determine whether the offer was in writing, as required for the application of § 8-42-105(3)(d)(I). Furthermore, insofar as there was a written offer of modified employment, we are unable to ascertain whether the ALJ found the claimant refused to "begin the employment" or returned to modified employment and subsequently quit. The ALJ found the claimant "accepted" the August 13 offer of modified employment but "could not perform her modified job duties" and "therefore . . . stopped working for" OEA. However, the ALJ awarded temporary partial disability benefits commencing August 11, 1998. Under these circumstances, the ALJ's findings are insufficient to ascertain whether the claim for temporary disability benefits is governed by the court's opinion in Laurel Manor Care Center v. Industrial Claim Appeals Office, supra.
On remand, the ALJ shall determine whether OEA made a written offer of modified employment within the meaning of § 8-42-105(3)(d)(I). If the ALJ finds there was such an offer, she shall determine whether the claimant refused to begin the employment which terminates her entitlement to temporary disability benefits under § 8-42-105(3)(d)(I), in accordance with Laurel Manor.
In the event the ALJ finds the claimant refused to begin a written offer of modified employment, the ALJ shall also make specific findings addressing whether the claimant's refusal was reasonable. The Laurel Manor court did not discuss the proof required to establish that an offer of modified employment is "unreasonable." However, we have previously concluded that the reasonableness of an offer of modified employment must be evaluated from an objective view. Belanger v. Keystone Resorts Inc., W.C. No. 4-250-114 (October 9, 1997). The Court of Appeals has also concluded that the reasonableness of a claimant's refusal to perform modified employment must relate in some way to the claimant's physical capacity. Frazier v. Industrial Claim Appeals Office (Colo.App. No. 92CA1210, April 15, 1993) (not selected for publication). In Frazier, the court agreed with our determination that the claimant's refusal to accept modified employment solely because it required him to trim his hair or beard was unreasonable. Frazier v. Montgomery Ward, W.C. No. 3-920-202, August 19, 1991.
Further, it is well established that the attending physician's determination of the claimant's ability to perform regular or modified employment is dispositive, and the claimant's subjective assessment of her physical limitation is legally immaterial. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Therefore, it would be error to rely on the claimant's testimony about her physical limitations to conclude that the offered employment was unreasonable.
In contrast, if the ALJ determines on remand that the claimant did begin the modified employment offered by OEA, the ALJ shall determine whether the claimant's subsequent wage loss was "to some degree" the result of the industrial disability. In resolving this issue, the ALJ may consider evidence the employer would have continued to provide modified employment had the claimant not quit. Strain v. Intermountain Steel Manufacturing Inc., W.C. No. 4-207-093, (October 7, 1996). Based upon these determinations, the ALJ shall make a new determination of the claimant's entitlement to temporary disability benefits.
II.
The respondents next contend the ALJ erred in failing to find they overcame Dr. Burkhardt's opinion that the claimant is not at MMI. In support, the respondents argue that the cause of the claimant's cervical complaints is subject to the preponderance of evidence standard. We disagree.
Under § 8-42-107(8)(b)(II), C.R.S. 2000, the DIME physician's opinion on MMI is binding unless overcome by "clear and convincing evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Clear and convincing evidence is evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, supra.
Whether the DIME physician's opinion regarding MMI has been overcome by clear and convincing evidence is a question of fact for the ALJ. Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Under this standard we must defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations and the plausible inferences she drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
In Qual-Med, Inc. v. Industrial Claim Appeals Office, supra, the court held that the DIME physician's opinion on the cause of a claimant's disability is an inherent part of the diagnostic assessment which comprises the DIME process of rating permanent medical impairment. See also Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) (treating physician's impairment rating includes determination on cause of impairment). Expressly relying on Qual-Med and Egan, we have previously held that the provisions of § 8-42-107(8)(b) concerning the determination of MMI reflect a legislative intent that ALJs defer to a DIME physician's opinion concerning the cause of the need for additional treatment, unless the opinion is overcome by clear and convincing evidence at a hearing. See Lissauer v. Arapahoe House, W.C. No. 4-208-121 (November 26, 1997), aff'd. Arapahoe House v. Industrial Claim Appeals Office (Colo.App. No. 97CA2132, July 9, 1998) (not selected for publication); Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996). In Jefferson County School District R-1 v. Pinkard (Colo.App. No. 98CA0671, February 4, 1999) (not selected for publication), the Court of Appeals upheld our conclusion that the DIME physician's opinion on the cause of the claimant's condition is inherent in the DIME physician's determination of MMI. Therefore, we adhere to our prior conclusion that the DIME physician's opinion concerning the cause of the claimant's need for further treatment is subject to the "clear and convincing evidence" standard. Compare Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Among other things, Dr. Orent was critical of Dr. Burkhardt's opinion because Dr. Burkhardt recommended diagnostic testing to rule out non-work-related disease processes. Dr. Orent opined that such testing was overburdensome on employers and insurers in the workers' compensation system. Dr. Orent also opined that Dr. Burkhardt erred in relying on Dr. Myer's reference to "neck stiffness" as evidence the claimant reported cervical symptoms prior to the date she quit the OEA employment. Dr. Orent stated that the limited reference to "neck stiffness" is insignificant because Dr. Myer indicated the claimant had no "radicular complaints."
Dr. Burkhardt recognized that the medical records do not document complaints of neck pain until after the claimant left OEA. However, she opined that after "hashing it all through," she believed the claimant's OEA job where she was required to sit over a microscope with her neck in a flexed-over position and work repeatedly with her hands was sufficient to cause a strain on the claimant's cervical spine. She also opined that "it's not uncommon for people to have a problem at the level of cervical spine, primarily focused on numbness in the hands, never really emphasizing that their neck is stiff quite enough for people to pay attention, and that they may come up later." (Tr. November 29, 1999, p. 52).
The ALJ found Dr. Orent's testimony "credible but not persuasive," because Dr. Orent is not a neurologist and is was not qualified to overcome Dr. Burkhardt's opinions that the claimant's cervical and lumbar complaints involve both neurological and psychological issues. In view of the ALJ's finding that there is a neurological component to the industrial injury, the ALJ reasonably resolved the conflicting expert medical testimony based upon Dr. Burkhardt's expertise in neurology.
Furthermore, Dr. Burkhardt's opinions are buttressed by evidence the claimant performed restaurant work prior to her employment at OEA and had no hand or neck problems. (Tr. November 28, 1999, p. 83). Under these circumstances, we cannot say the ALJ erred in refusing to find that Dr. Orent's testimony rose to the level of "clear and convincing" evidence to overcome Dr. Burkhardt's finding of a causal connection between the claimant's spinal complaints and the industrial injury.
The respondents' remaining arguments have been considered and do not persuade us to alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated March 14, 2000, is affirmed insofar as it determined the claimant is not at MMI and awarded medical benefits.
IT IS FURTHER ORDERED that the ALJ's award of temporary disability benefits commencing August 11, 1998, is set aside and the matter is remanded to the ALJ for additional findings and a new determination of the claimant's entitlement to such benefits, in accordance with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 5, 2001 to the following parties:
Saba Hailemichael, 1741 Xenia St., Denver, CO 80220
OEA, Inc., P. O. Box 100488, Denver, CO 80250
Nancy Dean, ACE-USA, Inc., P. O. Box 2941, Greenwood Village, CO 80150-0141
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy