Opinion
W.C. No. 4-542-291, 4-608-678, 4-641-058.
January 11, 2006.
FINAL ORDER
The claimant and the respondents seek review of a corrected order dated August 1, 2005 of Administrative Law Judge Felter (ALJ) that dismissed claims W.C. No. 4-608-678 and W.C. No. 4-641-059, that granted the petition to reopen in W.C. No. 4-542-291, and that ordered medical and temporary disability benefits. We dismiss that portion of the respondents' petition to review addressing the award of temporary disability benefits. Otherwise we affirm the order.
A hearing was held on the issues of whether W.C. No. 4-542-291 was closed and, if so, whether it should be reopened, whether the claimant's neck problems were related to his compensable injury, and whether he was entitled to medical benefits and to temporary disability benefits.
Following the hearing the ALJ entered factual findings that may be summarized as follows. The claimant was employed as a heavy equipment service technician, which required him to service and repair various equipment, and to perform routine maintenance on the employer's fleet of buses. He sustained an admitted industrial injury on January 9, 2002, when he tripped and fell while carrying a box. An EMG was performed in March 2002 and disclosed moderately severe median neuropathy of both wrists and moderately severe ulnar neuropathy of the left elbow. Surgery was performed on both elbows and both wrists; however, the claimant continued to experience numbness and tingling in his arms. Following the surgeries, which were performed in May and October 2002, the claimant returned in April 2003 to his authorized treating physician, Dr. Artist, complaining of pain in the right shoulder and neck. In May 2003 Dr. Seemann examined the claimant as part of a surgical consultation and also noted pain in the shoulder radiating into the claimant's neck. Dr. Seemann referred the claimant for an MRI of the shoulder and in August 2003 performed arthroscopic surgery on the claimant's right shoulder. In February 2004 the claimant sought treatment for a severe headache at the emergency room of the Swedish Medical Center. He was diagnosed with a herniated cervical disc at the C5-6 level and a bulging disc at the C6-7 level. An MRI of the claimant's cervical spine was performed, which revealed various findings that included a disc protrusion.
In February 2004 Dr. Szczukowski placed the claimant at maximum medical improvement (MMI) with permanent impairment and work restrictions. The same month, the claimant was examined by Dr. Artist, who also imposed physical restrictions. The claimant returned to Dr. Artist in March 2004, and the doctor diagnosed cervical disc and degenerative problems. He also recommended diagnostic testing to determine whether the claimant's neck problems were related to his compensable injury.
The insurer filed a final admission of liability on April 8, 2004, and a revised admission on April 19, 2004. The claimant objected and filed an application for hearing on the issues of compensability and "overpayment." The claimant testified that it was his intention to assert at a hearing that his neck condition was related to his compensable injury. The ALJ specifically found that the claimant's neck problems were related to that compensable injury. Although the neck claim apparently did not proceed to hearing pursuant to the claimant's application, he filed a claim for compensation and two petitions to reopen asserting that claim. Although Dr. Hughes' report was arguably ambiguous, the ALJ found that the doctor examined the claimant and opined that the claimant's cervical condition was causally related to the admitted injury. In addition to his findings that the claimant's neck condition was related to the injury, and that it had worsened, the ALJ also found that the claimant's doctors had been mistaken regarding their diagnosis of the neck condition.
The ALJ also found that the claimant was unable to perform the duties of his regular job and that, although the employer was accommodating his physical restrictions, after August 13, 2004 the claimant was unable to perform any work at all for the employer.
Based upon his factual findings, the ALJ concluded that the claimant's neck problems resulted from the compensable claim in W.C. No. 4-542-291. He granted the petition to reopen and ordered the respondents to pay for emergency medical treatment provided by Swedish Medical Center and for treatment provided by Kaiser. He also ordered the respondents to pay temporary partial disability benefits from November 4, 2003 to August 12, 2004, reserving the question of the claimant's average weekly wage for future determination. Based upon a stipulation of the parties, the ALJ dismissed the claims in W.C. No. 4-608-678 and W.C. No. 4-641-059. Both parties petitioned to review the ALJ's order.
I.
The respondents first contend on appeal that the ALJ erred in reopening the claim for treatment for the neck problems, since the claimant has failed to establish any of the statutory criteria for reopening. The respondents argue that the claimant was entirely aware of his neck problems prior to closure of his claim, and that the only arguable error or mistake made in the case was the claimant's failure to avail himself of the Division independent medical examination (DIME) procedure to challenge the treating doctor's opinion that the neck was not related to his industrial injury. The respondents also argue that the claimant could have taken advantage of the DIME procedures whether or not the treating and evaluating doctors correctly recognized the relatedness of the neck condition, and that the purpose of the DIME was to resolve such uncertainties. The respondents also argue that the record does not support the finding that the claimant's condition worsened after closure of the claim. We are not persuaded that the ALJ erred.
Pursuant to the Act, any award may be reopened on the grounds of error, mistake, or a change in the claimant's condition. § 8-43-303, C.R.S. 2005. The intent of the reopening statute is to provide relief to claimants who are entitled to awards of any type of benefits. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The ALJ has wide discretion to determine whether a mistake has occurred that justifies reopening the claim. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may not interfere with the ALJ's order reopening the claim in the absence of a clear abuse of discretion. The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is not supported by the evidence or the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Regarding the issue of reopening of the claim based on error or mistake, contrary to the respondents argument, we do not view this case as distinguishable from Berg v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA1130, August 11, 2005). In Berg the respondents obtained a DIME, which recommended against back surgery, and the respondents filed a final admission of liability, to which the claimant objected. The claimant did not file an application for hearing in conjunction with his objection to the final admission; however, shortly thereafter he filed a petition to reopen alleging that the claimant's treating physicians and the DIME physician were mistaken regarding the cause of his back symptoms. The ALJ granted the petition to reopen, finding that the doctors had been mistaken both about MMI and about the relatedness of the claimant's back condition to his industrial injury.
A panel of the Industrial Claim Appeals Office set aside the ALJ's order, reasoning that permitting reopening based upon the "mistake" of an uncontested DIME report would subject a DIME physician's determination of MMI to collateral attack under a diminished burden of proof. The Colorado Court of Appeals, however, set aside our order, holding that there is nothing in the statutory DIME procedures that limits the reopening provisions. The court also rejected our reasoning that permitting reopening under these circumstances encouraged efforts to circumvent the DIME procedures, with the attendant higher burdens of proof. In this respect the court stated: "If a claimant files a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ has authority to deny it. Id.
Contrary to the respondents' argument, we perceive no principled distinction between Berg and the facts of this case. Although it is true that in Berg the respondents had obtained a DIME and argued that the claimant "circumvented" it through reopening, the court's reasoning is equally applicable to the present case, where the claimant failed to obtain a DIME prior to reopening. In our view, nothing in the distinction between Berg and the present case justifies a result contrary to the opinion of the court of appeals. We are bound by the published authority issued by the court of appeals, and Berg is dispositive in this case. C.A.R. 35(f).
Moreover, as we read the ALJ's order, he also found that the claimant's condition had worsened, and that therefore the claim was properly reopened on that basis. The ALJ entered a factual finding that "[t]he Claimant's neck condition has continued to worsen since the closure of his claim in that he is having headaches more frequently that are increasing in severity." Corrected Specific Findings of Fact, Conclusions of Law, and Order at 7-8, ¶ 32. The ALJ reiterated that factual finding later in his order, stating that "the Claimant's condition has continued to deteriorate and worsen as a result of his work related neck condition." Id. at 9, ¶ 38. In the discussion contained in his conclusions of law the ALJ also referred to the basis of the reopening as "a mistake in diagnosis and/or a change in condition." Id. at 10, ¶ d.
As with the reopening based upon mistake, we are not persuaded that the ALJ abused his discretion in reopening the claim based upon a worsened condition. Reopening on that basis is appropriate where the degree of permanent disability has changed or where the claimant is entitled to additional medical or temporary disability benefits. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). As noted previously, the ALJ is vested with broad discretion in determining whether the claimant carried his burden of proof, and we must uphold the ALJ's determinations if supported by substantial evidence. § 8-43-301(8), C.R.S. 2005; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). Substantial evidence is that quantum of probative evidence which supports a reasonable belief in the existence of a fact without regard to evidence supporting conflicting or contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). When applying the substantial evidence test we must defer to the ALJ's credibility determination, 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).
Contrary to the respondent's argument, the record contains substantial evidence supporting the ALJ's factual findings that the claimant's neck condition was related to his compensable injury and worsened. Initially, we reject the respondent's argument that the opinions of Dr. Hughes regarding the relatedness of the neck problems to the industrial injury were merely conjecture. Although Dr. Hughes did not state his opinions expressly "to a reasonable degree of medical probability," any uncertainty or reservations he expressed in delivering those opinions went only to the weight of his testimony. Further, the record contains sufficient evidence to support the ALJ's findings that the claimant's neck problems worsened. The claimant responded in the affirmative in response to a question from his attorney concerning whether his neck condition had worsened, and further testified that it continued to worsen even at the time of the hearing. Tr. at 32, 33. The ALJ's findings in this regard are further supported by the medical report of Dr. Hughes, who stated that the onset of the claimant's neck problems was probably delayed as a result of other medical conditions suffered by the claimant. Under these circumstances, the ALJ's order reopening the claim is supported by the record and by applicable law.
The respondents also argue that on November 4, 2003 the employer was accommodating the claimant's restrictions and, therefore, the ALJ's order awarding temporary total disability benefits is not supported by the record. The respondents assert that the ALJ's finding that at that time the claimant's "kidney doctor" took him off work is inconsistent with the award of temporary disability benefits, because the employer would have continued to accommodate his restrictions, absent the kidney disease. However, because the ALJ did not enter findings concerning the claimant's average weekly wage or the hourly calculation of the award of temporary partial disability benefits, we conclude that this portion of the order is not presently final and reviewable.
Section 8-43-301(2), C.R.S. 2004 provides that any dissatisfied party may file a petition to review "an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
An order that determines the respondents' liability for temporary disability benefits but does not determine the amount of such benefits is not a final order requiring the payment of benefits. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); C.F. I. Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986). Here, the ALJ ordered the respondents to pay temporary disability benefits for a specific period of time; however, the ALJ made no findings concerning the claimant's average weekly wage. Nor, indeed, did the ALJ's order specify the number of hours on which the award of temporary partial disability benefits was based. Rather, the order left those calculations "to be determined by the parties post hearing." Under these circumstances, the order requiring the payment of temporary disability benefits is interlocutory and not currently subject to review.
II.
The claimant contends on appeal that the ALJ erred in concluding that the claim was closed and required a petition to reopen. We conclude that it is unnecessary to address this argument, because any error committed is necessarily harmless.
The claimant seeks a declaration that the petition to reopen was unnecessary and that, contrary to the ruling of the ALJ, the issue of the relatedness of the neck condition was open for adjudication. The claimant correctly notes that during the hearing the ALJ entered an oral order that the final admission closed the issue of the relatedness of the neck condition. However, the ALJ subsequently determined that the claimant's neck problems did result from the industrial injury and, accordingly, he granted the petition to reopen. Under these circumstances, we have no basis for granting any relief to which the claimant is not already entitled and any such order would have no legal effect on the claim. Therefore, any error committed by the ALJ in concluding that the claim was closed and in requiring a petition to reopen is necessarily harmless. See § 8-43-310, C.R.S. 2005 (error that does not damage a party should be disregarded); Stohl v. Blue Mountain Ranch Boys Camp, W.C. No. 4-516-764 (February 25, 2005) (ALJ's error in concluding that the issue of permanent total disability was open was rendered harmless by alternative ruling granting petition to reopen).
IT IS THEREFORE ORDERED that the respondents' petition to review the order dated August 1, 2005 as it pertains to the award of temporary disability benefits is dismissed without prejudice and,
IT IS FURTHER ORDERED that the ALJ's order dated August 1, 2005, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
Michael Thorn, Arvada, CO, Mary Padilla, City County of Denver, Denver, CO, Janet Frickey, Esq., Lakewood, CO, (For Claimant).
Olivia L. Hudson Smith, Esq., Denver, CO, (For Respondent).