Opinion
W.C. No. 4-535-290.
November 21, 2006.
FINAL ORDER
The claimant and the respondents both seek review of an order of Administrative Law Judge Martinez (ALJ) dated June 19, 2006 that determined the claimant has Chronic (or Complex) Regional Pain Syndrome (CRPS), formerly known as Reflex Sympathetic Dystrophy (RSD), which is causally related to her admitted work-related injury and ordered payment of temporary total disability (TTD) benefits and medical benefits to be provided. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted back injury on March 10, 2002. Dr. Gray placed the claimant at maximum medical improvement (MMI) on October 9, 2002. Dr. Gray "reopened the claim" on March 26, 2003 having found the claimant's symptoms worsen. On April 27, 2004 Dr Gray placed the claimant at MMI for a second time placing her new date of MMI as the end of the month of January 2004. Dr. Feinsinger assumed the patient's post-MMI maintenance care. Dr. Feinsinger on March 18, 2005 noted hypersensitivity and thought this symptom might represent mild RSD. Dr. Sullivan noted on April 7, 2005 that the changes affecting the claimant was a delayed onset of RSD related to her original injury. On April 14, 2005 Dr. Feinsinger noted that the patient was clearly worse and was no longer at MMI. On May 16, 2005 Dr. Feinsinger stated that the claimant had developed RSD in her ankle and foot. Dr. Goldman could not say within a reasonable degree of medical probability whether the claimant had RSD. However Dr. Goldman did state that the RSD symptoms he diagnosed were not work-related.
The ALJ rejected the opinion of Dr. Goldman on causation of RSD and found it unpersuasive and not supported by the medical record. The ALJ found the opinions of Dr. Feinsinger and Dr. Sullivan to be persuasive and supported by the record. The ALJ found the testimony of the claimant was credible and supported by the medical record.
The ALJ concluded that the claimant had proved by a preponderance of the evidence that she had RSD, which was causally related to her admitted work-related injury. The respondents agreed that the claimant's condition had worsened. The claimant's primary treating physician stated that the claimant was no longer at MMI as of April 14, 2005. The ALJ found that the claimant had proved by a preponderance of the evidence that the claimant as of April 14, 2005 had suffered a significant worsening of her work-related medical condition which caused her to have a complete inability to work and restrictions which impaired her ability to effectively and properly perform her regular employment. The ALJ awarded TTD benefits beginning on April 14, 2005 and continuing until terminated pursuant to law.
On appeal the respondents contend that the ALJ's determination that the claimant's RSD is a compensable condition was not based on substantial evidence in the record. Specifically, the respondents argue that Dr. Sullivan failed to follow the Medical Treatment Guidelines in formulating his diagnosis of RSD and the ALJ erred in crediting the testimony of this physician.
The Division's medical treatment guidelines, found in Department of Labor Employment Rule 17, 7 Code Colo. Regs. 1101-3, (Exhibit T) are regarded as the accepted professional standards for medical care under the Workers' Compensation Act. Rook v. Industrial Claim Appeals Office of State, 111 P.3d 549 (Colo.App. 2005). The guidelines are to be used by health care practitioners when furnishing medical aid under the Workers' Compensation Act. Section 8-42-101(3)(b), C.R.S. 2006; Hall v. Indus. Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003).
In our opinion it would be appropriate for the ALJ to consider the guidelines on the question of diagnosis of RSD. See Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo.App. 2005); Hall v. Industrial Claim Appeals Office, 74 P.3d 459. Accordingly, the ALJ could properly considered, as did Dr. Goldman, the application of the guidelines to certain test results. Exhibit E at 30.
However, even if a deviation from the medical treatment guidelines had been shown to have been committed by a medical expert we are not convinced that under the circumstances of this case it would compel the ALJ to disregard the opinion of that expert. The respondent has not cited any authority, nor are we aware of any, for the proposition that a deviation from the medical treatment guidelines compels the fact finder to disregard the opinion of that medical expert on the issue of the causal connection between a work related injury and a particular medical condition. See Eldi v. Montgomery Ward W.C. No. 3-757-021 (October 30, 1998); See Jones v. T.T.C. Illinois, Inc., W.C. No. 4-503-150 (May 5, 2006) (the guidelines are not definitive).
In any event 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), C.R.S. 2006. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and 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). Even excluding the opinion of Dr. Sullivan there is substantial evidence in the record for the ALJ's finding that the claimant had proved by a preponderance of the evidence that she had RSD, which was causally related to her admitted work-related injury. Dr. Feinsinger opined on several occasions that the claimant had developed RSD in her ankle and foot. Exhibit 11 at 12 17 23 26. Under theses circumstances we perceive no basis on which to interfere with the ALJ's finding.
On appeal the claimant contends that the ALJ erred in awarding TTD from April 14, 2005 because that was the date the treating physician stated the claimant was no longer at MMI. The claimant argues that she suffered lost earning capacity at some earlier date. The claimant argues the ALJ confused the concepts of eligibility for TTD and reopening a claim for worsening of condition.
A reopening based on worsened condition is predicated on a deterioration in the claimant's "physical condition." Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987). Reopening is appropriate where the deterioration in the claimant's condition causes increased permanent disability, the need for additional medical treatment which was not foreseeable when the claim was closed, or additional temporary disability. See Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988); Loucks v. Safeway Stores, 757 P.2d 639 (Colo.App. 1988). Section 8-42-105(3)(a), C.R.S. 2006, provides that TTD benefits terminate when the claimant reaches MMI. Where the claimant seeks additional temporary disability benefits, the claimant must show the alleged worsening of condition is such that the claimant was no longer at MMI. This is true because temporary benefits may not be awarded to a claimant who remains at MMI. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000); Martinez v. Sealy W.C. No. 4-280-423 (July 1, 2002).
The ALJ found on substantial evidence that the claimant proved by a preponderance of the evidence that she was entitled to TTD benefits as of April 14, 2005. In our opinion the ALJ correctly applied the law and his finding was based upon substantial evidence. Richards v. Industrial Claim Appeals Office, supra. IT IS THEREFORE ORDERED that the ALJ's order dated June 19, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Julie Siminoe, Eagle, CO, Worldwide Flight Services, Inc., Janet Coffey, Irving, TX, Greg S. Russi, Esq., Rifle, CO, (For Claimant).
William M. Sterck, Esq., Denver, CO, (For Respondents).
AIG Claim Services, Rusty Pinckney, Shawnee Mission, KS.