Matter of Miller v. Source One Management, W. C. No. 4-418-173 (Colo. 12/19/2003)

• Decision Date: 19 December 2003
• Docket Number: W. C. No. 4-418-173.
• Parties: In the Matter of the Claim of Justin Miller, Claimant, v. Source One Management, Employer, and Reliance National Indemnity c/o G.E. Young, Insurer, Respondents.
• Court: Colorado Supreme Court

Page 1

In the Matter of the Claim of Justin Miller, Claimant,
v.
Source One Management, Employer, and Reliance National Indemnity c/o G.E. Young, Insurer, Respondents. W. C. No. 4-418-173. Supreme Court of Colorado. December 19, 2003.

The claimant and the respondents seek review of an order of Administrative Law Judge Klein (ALJ Klein) which requires the respondents to pay temporary total disability (TTD) benefits from November 2, 1999 until August 29, 2000, and from March 1, 2002 until September 17, 2002. The respondents contend ALJ Klein failed to make sufficient findings of fact, and that the evidence does not support the award. The respondents further contend that ALJ Klein improperly adopted findings of fact previously entered by ALJ Schulman. The claimant contends the ALJ improperly limited the period of TTD benefits to the time during which he was receiving "active medical treatment." We modify the award to increase the period of TTD benefits, and otherwise affirm the order.

Robert J. Steinborn, Esq. and Suzanne M. Gall, Esq., Denver, CO, for Claimant.

Anne Smith Myers, Esq. and Michelle N. Young, Esq., Denver, CO, for Respondents.

David Cain, Kathy E. Dean, Industrial Claim Appeals Panel.

FINAL ORDER

The case is currently postured as a petition to reopen based on worsened condition. In an order dated June 11, 2001, ALJ Schulman found the claimant suffered a worsening of condition and ordered that the claim be reopened. The matter then proceeded to hearing before ALJ Klein on the issue of TTD benefits, which were awarded in an order dated June 23, 2003.

As set forth in both orders, in July 1998 the claimant sustained a compensable occupational disease arising from duties which required him to operate a computer for four to six hours per day. Following a course of conservative care, a treating physician, Dr. Machanic, placed the claimant at maximum medical improvement (MMI) on February 19, 1999. On March 17, 1999 Dr. Machanic issued a 14 percent whole person impairment rating which included impairment of both upper extremities and the cervical region. The diagnoses at that time included bilateral ulnar neuropathies and thoracic outlet syndrome (TOS). The respondents filed an uncontested final admission of liability based on Dr. Machanic's rating.

The claimant continued to perform his regular duties from the onset of the disease through October 1999. However, after the date of MMI, the claimant testified that he experienced increasing pain in the upper extremities and neck, which also pain began to generalize to other areas including the lower extremities. The claimant also experienced numbness and tingling in the upper extremities, tremors of the upper extremities, and cramping of both the upper and lower extremities. The claimant left work in mid-October 1999 following an episode of extreme pain in the lower extremities, and he never returned to work.

The claimant filed a petition to reopen based on worsened condition which resulted in the orders of ALJ Schulman and ALJ Klein. Significantly, ALJ Klein's findings of fact incorporate the findings of ALJ Schulman with respect to the claimant's condition to May 8, 2001, the date of the hearing before ALJ Schulman. ALJ Klein also considered additional evidence including depositions of Dr . Machanic and Dr. Hammond, a vascular surgeon who examined and treated the claimant for TOS.

ALJ Klein entered extensive findings of fact concerning the claimant's entitlement to TTD benefits commencing November 2, 1999. The ALJ found the testimony and opinions of Dr, Machanic to be "particularly credible and persuasive." Thus, the ALJ determined that in addition to the diagnoses of ulnar nerve entrapment, carpal tunnel syndrome and TOS, the claimant has developed a separate diagnosis of fibromyalgia to which the other diagnoses "contribute." In so doing, the ALJ found that some of the claimant's symptoms, including the lower extremity problems, tremors and cramping are not work-related. (Findings of Fact 30, 31, 38, 39).

ALJ Klein further found that between November 2, 1999, and September 17, 2002, when Dr, Machanic placed the claimant at MMI for the second time, the claimant was unable to work as a result of a "combination of non-industrial and industrially related reasons." (Finding of Fact 43; Conclusion of Law 7).

Under these circumstances, the ALJ Klein awarded TTD benefits commencing November 2, 1999, until August 29, 2000. He further awarded TTD commencing March 1, 2002, until September 17, 2002. The gap in TTD benefits is apparently explained by the ALJ's finding that the claimant was not receiving active medical treatment for any of his conditions during the period from August 29, 2000, until March 1, 2002. (Finding of Fact 34).

I.

On review, the respondents first contend ALJ Klein failed to make sufficient findings of fact to support the determination that the claimant's disabling symptoms were caused by the industrial injury, or that any such symptoms are disabling. Moreover, the respondents contend the evidence would not support such findings. We disagree.

The claimant had the burden of proof to establish that the industrial injury and results flowing naturally and proximately therefrom are the cause of the claimant's alleged TTD. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003, Faulkner v. Industrial Claim Appeals Office, supra.

The substantial evidence standard is a narrow one which requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. In particular, the weight and credibility to be assigned expert medical opinions is within the ALJ's province as fact-finder. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

The respondents' assertion notwithstanding, there is ample evidence in the record to support the ALJ's finding that the claimant suffered an "aggravation" of the various conditions associated with the industrial injury, and that this aggravation takes the form of fibromyalgia. Dr. Machanic testified that the pain stemming from the claimant's upper extremity occupational disease caused the claimant to stop using his arms, which in turn led to the development of fibromyalgia. (Machanic Depo. Pp. 22-23, 29-31). The ALJ explicitly credited this opinion and found it "most persuasive."

Thus, the ALJ's findings on the causation issue are sufficient to indicate the factual and legal bases of the award, and fully adequate to support appellate review. The fact that some evidence in the record might support a contrary finding affords no basis for appellate review. Cordova v. Industrial Claim Appeals Office, supra.

Further, the findings and evidence are sufficient to support the ALJ's finding that the claimant became temporarily disabled on November 2, 1999. TTD benefits may be awarded when the injury causes a disability resulting in a temporary wage loss. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000). Disability connotes an element of medical incapacity, and an element of impaired earning capacity measured by the claimant's inability to assume his or her prior work. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); Davission v. Rocky Mountain Safety, Inc., W.C. No. 4283-201 (June 21, 1999). Where, as here, the claim for TTD follows a reopening, the claimant must show a greater impact on the claimant's wage earning capacity than existed on the original date of MMI. City of Colorado Springs v. Industrial...