Opinion
W.C. Nos. 4-659-928, 4-659-928.
August 6, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ Martinez) dated January 4, 2008, that denied the claimant's request for surgery recommended by Dr. Moore. We affirm.
The issue for determination at the hearing was whether the surgery recommended by Dr. Moore was reasonably necessary to cure and relieve the claimant from the effects of his work-related injury. The ALJ made the following pertinent findings of fact. On August 6, 2005, the claimant injured his left shoulder in an admitted accident. Following the injury Dr. Moore performed surgery on the claimant's left shoulder and placed the claimant at maximum medical improvement (MMI) on March 15, 2006. The claimant, after being placed at MMI, returned to work in the oil fields, working for Dalbo. The claimant's duties at Dalbo required him to lift hoses weighing thirty pounds on and off a truck, and to lift tire chains weighing between 50 to 75 pounds when dry, and in excess of 100 pounds when muddy. The claimant also worked at home on a ranch and reported discomfort with throwing hay bales. On December 10, 2005, the claimant suffered a slip and fall while getting into his trailer, and landed on his chest and forearms with his elbows in a flexed position. The claimant requested a Division Independent Medical Examination (DIME). The DIME was performed by Dr. Lindberg on September 19, 2006. Dr. Lindberg opined that the clamant was not at MMI and he recommended further diagnostic procedures. The claimant was seen by Dr. Moore after an MRI and x-rays were taken. Dr. Moore recommended surgery on the claimant's left shoulder. ALJ Martinez determined that the claimant had not shown it was more probably true than not that the surgery recommended by Dr. Moore was reasonably necessary to cure and relieve him from the effects of his August 6, 2005, work-related injury.
I.
On appeal the claimant contends that ALJ Martinez erred in ruling that the claimant did not show by a preponderance of the evidence that the surgery recommended by Dr. Moore was reasonably necessary. The claimant argues that there were no medical records indicating that the need for treatment was due to subsequent employment. The claimant further argues that the testimony of Dr. Winkler does not support a finding that the claimant's current symptomatology is unrelated to his August 6, 2005 injury. We are not persuaded that the ALJ erred in this respect.
The extent to which various causative factors contributed to the claimant's disability or need for medical treatment is a question of fact for the ALJ. Ramirez v. Garfield's Off Broadway, W.C. No. 4-689-414 (March 13, 2007). It is only where reasonable minds can draw but one inference that the issue of causation becomes one of law. Schrieber v. Brown Root Inc., 888 P.2d 274 (Colo.App. 1993). Because these questions are factual in nature, we are bound by ALJ Martinez's determinations if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S. 2007; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to ALJ Martinez's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003).
Here, ALJ Martinez concluded that the claimant had not proven by a preponderance of the evidence that the surgery recommended by Dr. Moore is reasonably necessary to cure and relieve him from the effect of his August 6, 2005, work-related injury. The claimant's assertion notwithstanding, Dr. Winkler's report and testimony fully support the ALJ's factual findings and the conclusion that the claimant failed to carry his burden of proof.
ALJ Martinez found the opinions of Dr. Winkler to be persuasive. The ALJ noted the following opinions of Dr. Winkler, all gleaned from the factual record. Dr. Winkler was of the opinion that before any additional surgery is performed the claimant needs additional diagnostic testing to determine the specific source of the claimant's pain, and that it should be treated with non-operative means prior to any surgery. Winkler Depo. at 19-20. Dr. Winkler also stated that there are several possible causes of the claimant's need for surgery, and that aging and attrition could be the cause of the claimant's current need for surgery on his left shoulder. Winkler Depo. at 24-25. The most likely cause of the claimant's need for surgery on his left shoulder was the fall where he landed on his elbows. Winkler Depo. at 24. However, activities such as stacking hay or working at a job that required vigorous use of the upper extremities could have caused the claimant's need for surgery. Winkler Depo. at 24. He also stated that the claimant's August 6, 2005, accident was not the cause of the claimant's current need for surgery. Exhibit A at 2; Winkler Depo. at 22.
Further, ALJ Martinez, again with record support, found that Dr. Moore never expressed an opinion, within a reasonable degree of medical probability, regarding the cause of the claimant's current need for surgery. Moore Depo. at 35. Dr. Moore expressed the opinion that there were several possibilities as to the cause of the claimant's need for surgery on his left shoulder. Moore Depo. at 27 36
ALJ Martinez also expressly found that the claimant's testimony regarding the cause of his symptoms was not credible. We may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). An ALJ is not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility. See Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987). Nevertheless, here ALJ Martinez explicitly stated that, although the claimant's testimony implied that his current need for surgery was caused by the August 6, 2005 accident, it was contradicted by persuasive contrary evidence in the medical record and by the persuasive opinions of Dr. Winkler.
The claimant argues that the respondents' refusal to authorize the requested medical care is a constructive challenge to Dr. Moore and Dr. Lindberg's relatedness determinations. However we agree with the respondents that Dr. Lindberg as the DIME physician did not express an opinion that the specific surgery requested by the claimant was related to his August 6, 2005, accident. Instead, Dr. Lindberg opined in September 2006 that the claimant had a poor result from his surgery and the next step would be to have x-rays of the shoulder to determine the status of the subacromial decompression and the excision of the distal clavicle. Exhibit 2 at 3. ALJ Martinez found that the diagnostic testing performed after the DIME did not substantiate the conclusions of the DIME physician regarding the results of the previous surgery. Rather, contrary to Dr. Lindberg's opinion, the ALJ credited Dr. Moore's opinion that the MRI and the x-rays showed that the acromion had been adequately resected to allow good space for the rotator cuff. Moore Depo. at 1618; Exhibit 3 at 33.
II.
On appeal, the claimant next contends that ALJ Martinez erred in not applying the "law of the case" doctrine to preclude evidence of a subsequent injury sustained by the claimant while employed by Dalbo. Asserting that the "law of the case" doctrine applied, the claimant argued at the hearing that a previous order entered by ALJ Cain had resolved that issue, and the claimant moved to preclude the respondents from presenting evidence of any subsequent intervening injury. Tr. at 5-7. In his written order the ALJ denied the motion, largely on the grounds that ALJ Cain's determinations were factual ones, and that new facts adduced in the present proceeding persuaded the ALJ that ALJ Cain's ruling should not be followed. We perceive no abuse of discretion in the ALJ Martinez's denial of the claimant's motion.
The "law of the case" doctrine is a discretionary rule, which provides that issues that have been litigated and decided ordinarily should not be relitigated in the same proceeding. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). As the ALJ correctly noted, the doctrine applies to decisions of law rather than to the resolution of factual questions. Mining Equipment v. Leadville Corp., 856 P.2d 81, 85 (Colo.App. 1993). Accordingly, an ALJ may preclude the relitigation of an issue, which has been previously resolved in the same action. Here in the absence of an abuse of discretion, we may not disturb ALJ Martinez's denial of the claimant's motion. The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. 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).
In an order dated May 3, 2007, ALJ Cain found that:
The respondents failed to prove that the claimant sustained an `intervening injury' while working at Dalbo. Further Dr. Lindberg persuasively explained the continuation of the claimant's symptoms after March 15, 2006, was related to the inadequacy of the original surgery and/or that development of scar tissue caused by the surgery. Consequently, the respondents failed to overcome by clear and convincing evidence Dr. Lindberg's DIME opinion that the cause of the claimant's need for treatment is related to the admitted industrial injury of August 6, 2005. Exhibit 9 at 9
ALJ Cain's order addressed the issue whether the respondents had failed to overcome by clear and convincing evidence the DIME physician's opinion that the claimant was not at MMI. The basis for the DIME report that he was not at MMI was that he was in need of treatment and diagnostic procedures to determine whether the August 2005 surgery was adequate.
The law of the case doctrine does not apply if the prior ruling results in error or is no longer sound because of changed conditions resulting in manifest injustice. People v. Roybal, 672 P.2d 1003 (Colo. 1983); Verzuh v. Rouse, supra; Stassines v. Albertson's Inc. W. C. No. 4-438-212 (November 6, 2003). Here, ALJ Martinez made the following pertinent findings. The issues before ALJ Cain included whether the respondents overcame the DIME physician's opinion that the claimant was not at MMI by clear and convincing evidence and whether the claimant demonstrated entitlement to TTD benefits. ALJ Cain concluded that the respondents failed to overcome the DIME physician's opinion regarding MMI. In reaching this legal conclusion, ALJ Cain found as a matter of fact that the claimant testified credibly that he did not sustain any new injuries while working at Dalbo. ALJ Cain further found that it was the DIME physician's opinion that the cause of the claimant's need for additional diagnostic procedures and treatment was either related to the inadequacy of the surgery performed in 2005 or the subsequent development of scar tissue caused by the surgical procedure. At the time the matter was set for hearing before ALJ Martinez, the claimant had undergone the diagnostic testing recommended by the DIME physician and the testing showed that the surgery performed in 2005 was satisfactory, with good decompression of the acromioclavicular joint. Further, the diagnostic testing did not demonstrate the development of excessive scar tissue. The MRI the claimant underwent following the DIME showed degenerative joint disease and a new rotator cuff tear not present in 2005. Based on these new findings, Dr. Moore recommended surgery. ALJ Martinez concluded that there were new facts, including the findings on the May 29, 2007 x-rays, the June 12, 2007 MRI and the testimony of Dr. Moore and Dr. Winkler, which convinced ALJ Martinez that he should not follow ALJ Cain's finding that there was no new injury at Dalbo.
Consequently, ALJ Martinez denied the claimant's motion to preclude respondents from presenting evidence of a subsequent intervening injury arising out of his employment with Dalbo allowed into evidence. Therefore, insofar as ALJ Cain's order could be read as a legal determination that an "intervening injury" while working at Dalbo was not the cause of the claimant's need for a second surgery ALJ Martinez was persuaded that the law of the case doctrine should not be applied. ALJ Martinez citing Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002), aff'd. in part rev'd. in part on other issues, Dworkin, Chambers Williams, P.C. v. Provo, 81 P.3d 1053 (Colo. 2003), noted that an ALJ may elect not to follow the prior ruling if new facts or other persuasive circumstances warrant modification of the prior ruling. Here, the ALJ recognized that the diagnostic procedures recommended by the DIME physician revealed new facts inconsistent with the DIME physician's opinion that the claimant's need for additional treatment was caused by the industrial injury. Under the circumstances here, we perceive no abuse of discretion in the failure to apply "law of the case" doctrine.
Further, as ALJ Martinez noted, the law of the case doctrine applies to decisions of law rather than to factual determinations. Mining Equipment Inc. v. Leadville Corp., supra; Jones v. Goldco Industries, Inc., W. C. No. 3-677-352 (November 9, 1998). Here, even assuming that the issue of overcoming the DIME report on MMI is at least a mixed question involving a legal conclusion by ALJ Cain, the disputed question whether the claimant sustained a subsequent injury at Dalbo is clearly one of fact for the ALJ. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); Gorsuch v. AMP Residential Services, LLC., W. C. No. 4-588-229 (July 18, 2005); Hollenbeck v. Timberview Edison Academy School District #2, W. C. No. 4-491-299 (November 08, 2004). Accordingly, the "law of the case" doctrine is not applicable to ALJ Cain's factual determination that the respondents had failed to prove that the claimant sustained an "intervening injury" while working at Dalbo.
IT IS THEREFORE ORDERED that the ALJ Martinez's order issued January 4, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
DENNIS M WILLIAMS, GLENCO, OK, (Claimant)
HYLAND ENTERPRISES, INC., RAWLINS, WY, (Employer)
ZURICH AMERICAN INSURANCE COMPANY, Attn: VALERIE BURKE — CLAIM REPRESENTATIVE, KANSAS CITY, MO, (Insurer)
KILLIAN, JENSEN DAVIS, P.C., Attn: JOANNA C JENSEN, ESQ., GRAND JUNCTION, CO, (For Claimant)
CLIFTON, MUELLER BOVARNICK, P. C., Attn: JAMES R CLIFTON, ESQ, GRAND JUNCTION, CO, (For Respondents)