Opinion
W.C. No. 4-251-955
March 31, 1999.
FINAL ORDER
The claimant and the respondents separately petitioned for review of an order of Chief Administrative Law Judge Felter (ALJ) which suspended temporary disability benefits, and granted a credit for overpaid temporary disability benefits. We affirm.
On May 11, 1995, the claimant suffered a work-related injury. The respondents admitted liability for temporary total disability benefits. On November 1, 1995, the claimant was awarded Social Security Disability Insurance (SSDI) benefits. As a result, the respondents claimed an offset and requested credit for overpaid temporary disability benefits of $4,897.76 between November 1, 1995 and November 1996.
In 1996, the claimant underwent an unsuccessful talonavicular fusion by Dr. Thomas. In an office note dated April 22, 1997, Dr. Thomas suggested a repeat talonavicular fusion and referred the claimant to Dr. Houghton for a second opinion. On December 1, 1997, Dr. Houghton recommended the claimant proceed with further surgery.
On August 28, 1998, the respondents filed a Petition to Suspend temporary disability benefits on grounds that the claimant had refused to submit to further surgery. As of the hearing on October 29, 1998, the claimant had not yet undergone a repeat fusion surgery.
The ALJ found that the claimant failed to follow through with the treating physicians' recommendations for surgery and that the claimant willfully and unreasonably delayed and refused to submit to medical treatment. In support, the ALJ found that the claimant repeatedly delayed surgery for personal reasons, failed to appear for an appointment with Dr. Houghton in June 1998, and failed to appear for the surgery scheduled for September 2, 1998. The ALJ also found that the recommended surgery is reasonably necessary to improve the claimant's condition and that there is no medical reason not to proceed with the surgery. The ALJ also determined that the claimant has not been engaged in any other medical treatment to improve his condition since April 1997, and that the claimant's actions have delayed maximum medical improvement (MMI). Consequently, the ALJ suspended temporary total disability benefits from August 28, 1998, to the date the claimant undergoes surgery. The ALJ also granted the respondents a credit of $4,897.76 against their liability for permanent disability benefits.
I.
The claimant contends the ALJ erroneously granted the respondents' Petition to Suspend. We disagree.
Initially, we reject the claimant's contention that the Petition to Suspend is governed by § 8-42-105(3)(a)-(d), C.R.S. 1998. That statute governs the termination of temporary total disabiity benefits. The respondents' Petition to Suspend is governed by § 8-43-404(3), C.R.S. 1998. See Dziewior v. Michigan Corp., 672 P.2d 1026 (Colo.App. 1983). Section 8-43-404(3) allows an ALJ to suspend temporary disability benefits when the claimant:
"persists in any unsanitary or injurious practice which tends to imperil or retard recovery or refuses to submit to such medical or surgical treatment or vocational evaluation as is reasonably essential to promote recovery . . ." (Emphasis added).
Furthermore, the respondents are not required to prove that the claimant's condition "worsened" as a result of the delay. The respondents are only required to prove that the surgery is "reasonably essential to promote recovery" from the industrial injury. In other words, the respondents must prove that the recommended surgery is reasonable and necessary to assist the claimant in reaching MMI. Section 8-40-201(11.5), C.R.S. 1998; Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995).
The claimant contends the record does not support the ALJ's finding that he refused to submit to surgery. In support, the claimant argues that surgery was only one of several treatment options he discussed with Dr. Houghton, that he and Dr. Houghton mutually agreed to delay the surgery, that he did not fail to appear for any medical appointment with Dr. Houghton, and that he was never notified of the surgery scheduled on September 2, 1998. The claimant further asserts that he agreed to submit to surgery as soon as it was presented as the only treatment option available to improve his condition. We are not persuaded.
Whether the claimant has unreasonably refused to submit to surgery that is reasonably necessary to improve the industrial injury is a question of fact for resolution by the ALJ. Padillo v. F.H. Linneman Construction Co., 29 Colo. App. 137, 479 P.2d 990 (1971) ; Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Consequently, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Under the substantial evidence standard we must defer to the ALJ's credibility determinations and his assessment of the sufficiency and probative value of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, where the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to determine the inferences to be drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ's findings of fact are amply supported by the claimant's testimony, the medical records, and Dr. Houghton's deposition. (Tr. pp. 17, 20, 21, 24, 26; Houghton depo. pp. 6, 7, 9, 10, 13, 14, 20-22, 30). Furthermore, the ALJ's findings support his determination that the claimant willfully delayed surgery, and that determination supports the suspension of benefits. See Padillo v. F.H. Linneman Construction Co., supra.
II.
The respondents contend the ALJ did not apply the correct legal standard in finding that the claimant's willful delay after August 1, 1997, was not an efficient intervening event which severed the causal connection between the industrial injury and the subsequent wage loss. Therefore, the respondents argue the ALJ erred in refusing to terminate the claimant's temporary disability benefits retroactive to August 1, 1997. In support, the respondents rely on Phillips v. Denny's Restaurant (Colo.App. 91CA0879, December 26, 1991) (not selected for publication) and Zanandrie v. Castle Garden Nursing Home (Colo.App. No. 92CA1406, October 7, 1993) (not selected for publication), where the court upheld the suspension of temporary disability benefits based upon a determination that the claimants' pregnancies were efficient intervening events. We reject this argument.
Admittedly, an insurer is only liable for disabilities which are a natural consequence of the industrial injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). In Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986), the court held that an ALJ may suspend temporary disability benefits when intervening events indicate that the claimant's wage loss results from factors other than the industrial injury.
However, in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court held that temporary disability benefits are payable where the claimant proves the industrial injury contributed "to some degree" to the temporary wage loss. Under this standard, the claimant need not prove that the work-related disability is the "sole" cause of the wage loss. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Neither must the claimant prove that the injury is the "immediate" cause of the wage loss, but only that it is a "proximate" cause of the wage loss. Benefits are only precluded when the industrial disability plays "no part" in the wage loss. See Horton v. Industrial Claim Appeals Office, supra.
Moreover, the holding in PDM is not limited to "intervening events" involving employment terminations for fault. Horton v. Industrial Claim Appeals Office, supra; see also Hale v. Industrial Claims Appeals Office (Colo.App. No. 95CA0179, July 27, 1995) (not selected for publication) (setting aside Hale v. City of Colorado Springs, W.C. No. 3-963-532, January 13, 1995, and holding that under PDM, pregnancy is not an intervening event). Therefore, we reject the respondents' contention that PDM does not apply to the facts of this claim.
Here, it is undisputed that the claimant was temporarily totally disabled at the time Dr. Thomas recommended additional surgery. Thus, the industrial injury contributed "to some degree" to the claimant's wage loss in April 1997. Under PDM, it was incumbent upon the respondents to show that at some particular point, the injury no longer contributed in any degree to the claimant's wage loss. The respondents do not cite any evidence that the claimant's temporary disability would have resolved by a date certain if he undergone the surgery. Cf. Zanandrie v. Castle Garden Nursing Home, supra. Instead, the respondent sought to establish that the claimant is at MMI because he failed to decide within a reasonable time whether to proceed with surgery. However, the ALJ ruled that the issue of MMI was not before him. Absent evidence that the claimant's temporary disability would have resolved by a specific time but for his delay in undergoing surgery, we perceive no error in the ALJ's determination that the delay is not an efficient intervening event.
We are not persuaded otherwise by the cases relied upon by the respondents. Phillips and Zanandrie were both predicated on Roe v. Industrial Commission, supra, as were our conclusions in Willman v. Tri-R Systems, W.C. No. 3-925-207 (December 3, 1990). In turn, Roe relied upon Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), which was overruled by PDM, to the extent that Monfort stood for the proposition that an injured employee is eligible for temporary total disability benefits only upon proof that the industrial injury was the "sole" cause of the wage loss. Horton v. Industrial Claim Appeals Office, supra. Consequently, Roe v. Industrial Commission, supra, which is also factually distinguishable, has limited legal effect. See Horton v. Industrial Claim Appeals Office, supra.
III.
Lastly, the claimant contends the ALJ erred in granting the respondents a credit of $4,897.76 for overpaid temporary disability benefits. The claimant contends that the respondents already recouped the overpaid benefits. In support, the claimant has attached a General Admission of Liability dated December 23, 1998. The respondents contend the claimant waived this argument. We agree with the respondents.
Section 8-42-103(1)(c)(I), C.R.S. 1998, entitles the respondents to reduce the claimant's temporary disability benefits in an amount equal to fifty percent of the claimant's SSDI benefits. The claimant concedes that the respondents are entitled to a SSDI offset of $90.46 commencing November 1, 1995.
At the commencement of the hearing on October 29, 1998, the ALJ asked the parties whether there was a dispute concerning the amount of the respondents' alleged overpayment. (Tr. pp. 9, 10). In response, claimant's attorney stated that he recognized the respondents' right to an offset, but was not "prepared to talk dollars and cents." (Tr. pp. 9, 10). The ALJ then commented that $4,897.76 seemed to "be about right" for the SSDI offset over a year. (Tr. p. 10). The claimant's counsel agreed, and did not present evidence concerning the amount of the overpayment or request a continuance. We conclude from these circumstances that the claimant waived the argument that the respondents are not entitled to a credit of $4,897.76 for overpaid temporary disability benefits due to the SSDI offset.
However, even if the claimant preserved the argument for appellate review, we are not persuaded that the ALJ erroneously calculated the overpayment. In reaching our conclusion, we are restricted to the evidence before the ALJ. The December 23 admission is not part of the evidence submitted to the ALJ. Consequently, it cannot be considered for the first time on appeal. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995).
Nevertheless, the record contains a General Admission of Liability dated November 14, 1996, which asserts the right to a SSDI offset of $90.46 per week commencing November 1, 1995 and indicates an overpayment of temporary total disability benefits in the amount of $4,897.76 through the date of the admission. Therefore, the record supports the ALJ's determination concerning the offset.
IT IS THEREFORE ORDERED that the ALJ's order dated November 10, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 31, 1999 the following parties:
Todd Parks, 64 South Amhurst, Castle Rock, CO 80104
Ft. Collins Ready Mix, Inc., Dennis Morse, Mgr., c/o CCIA (Interagency Mail)
Attn: Curt Kriksciun, Esq., Colorado Compensation Insurance Authority (Interagency Mail)
Russ Hendrix, Kelli Malcolm, CCIA TEAM MNO, PO Box 469007, Denver, CO 80246-9007
Craig M. Berube, Esq., Bell Pollock, 26 W. Dry Creek Circle, Ste. 575, Littleton, CO 80120 (For Claimant)
Joel Pollack, Esq., Ritsema Lyon P.C., 999 18th Street Ste. 3100, Denver, CO 80202 (For Respondent)
BY: ______________