Loofbourrow v. Industrial Claims Appeals Office of State

321 P.3d 548, 2011 WL 4837503, 2011 Colo. App. LEXIS 1632
CourtColorado Court of Appeals
DecidedOctober 13, 2011
DocketNo. 10CA2176
StatusPublished
Cited by2 cases

This text of 321 P.3d 548 (Loofbourrow v. Industrial Claims Appeals Office of State) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loofbourrow v. Industrial Claims Appeals Office of State, 321 P.3d 548, 2011 WL 4837503, 2011 Colo. App. LEXIS 1632 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge TERRY.

In this workers' compensation proceeding, as a matter of first impression, we address whether a claimant who did not challenge a determination that she had reached maximum medical improvement (MMI) of her work-related injury in an open case can obtain temporary total disability (TTD) benefits where she has experienced a worsening of her original injury. Under the unique circumstances presented here, we conclude that she can.

Elaine Loofbourrow (claimant) seeks review of that part of the final order entered by the Industrial Claim Appeals Office (Panel) which set aside the administrative law judge's (ALJ's) award of TTD benefits. Harman-Bergstedt, Inc., and its insurer, Zurich American Insurance Company (collectively employer), cross-petition for review, asking us to set aside the Panel's order insofar as it affirmed the ALJ's determinations as to compensability, transfer of the right of selection to claimant, and the calculation of claimant's average weekly wage (AWW). We set aside the Panel's order overturning the TTD benefits award, affirm the remainder of its order, and remand for further proceedings.

I. Background

In November 2008, claimant, a manager of a fast food restaurant, developed back problems after an incident in which the cook walked off the job and claimant was left alone to perform all store functions. Employer sent her to an authorized treating physician (ATP), who diagnosed her with back strain. The ATP imposed work restrictions, and treated her with injections and physical therapy that cured and relieved her symptoms. In December 2008, the ATP placed claimant at MMI with no permanent medical impairment and discharged her from care. However, because claimant had lost no time from work, employer did not file either a general admission of liability or a final admission of liability (FAL).

Claimant began to experience pain again in March 2009 and consulted her personal physician. He ordered an MRI, which showed a bulging dise and a small annular tear, and he prescribed an injection, which she received in June 2009.

In August 2009, claimant experienced slightly worse back pain, which prompted her [552]*552to go to the emergency room. Two days later, claimant's personal physician placed her on various medications and told her she could no longer work.

Claimant reported her later symptoms to employer. In October 2009, when employer had not provided medical treatment with the original ATP, claimant filed an application for hearing in which she alleged that she "requested authorization [to] return to ATP and claim denied, care selection passed to claimant [sic]." Employer did not provide medical care until January 2010 and claimant continued to treat with her personal physician. She also remained off work under her physician's restrictions.

IL - ALJ's Findings

Following a hearing in which employer contested compensability of the November 2008 injury and claimant's August 2009 symptoms, the ALJ determined that claimant had proved she sustained a compensable injury to her lower back and that she suffered a subsequent worsening of that condition as a result of the natural progression of the initial work injury. The ALJ further found that employer had failed to tender medical care until January 2010 despite claimant's several notifications that she was alleging a worsening of condition. The ALJ, therefore, concluded that the right to select a physician had passed to claimant and that she had exercised it by selecting her personal physician, who was providing authorized treatment. The ALJ awarded claimant TTD benefits as of the date she stopped working, finding that her worsened condition had increased her medical incapacity and that she had also incurred a loss of wage-earning capacity because of the medical restrictions which prevented her from working. For purposes of the TTD award, the ALJ caleu-lated claimant's AWW based on her wages at the time of the November 2008 injury.

IIL Panel's Ruling

On review, the Panel upheld the ALJ's determinations as to compensability, right of selection, and calculation of claimant's AWW. However, it concluded that, because claimant had been placed at MMI with no permanent impairment in December 2008 and there had been no medical determination that she was no longer at MMI as of August 2009, the ALJ erred in awarding TTD. It therefore set aside the ALJ's award of TTD benefits.

IV. Discussion

A. - Compensability

In its cross-petition for review, employer first contends that the ALJ erred by concluding that claimant's job activities caused her back condition in November 2008 and the symptoms she experienced in August 2009. Employer specifically argues that substantial evidence did not support the ALJ's rejection of its medical expert's opinion as a "non-opinion" and that the ALJ's resulting failure to consider that evidence violated its due process rights. We disagree.

A claimant proves compensability by showing, by a preponderance of the evidence, that the injury arose out of and in the course of the claimant's employment. § 8-41-301(1)(c), C.R.S.2011. Whether the claimant has met this burden of proof is a question of fact for determination by the ALJ. Cabela v. Indus. Claim Appeals Office, 198 P.3d 1277, 1280 (Colo.App.2008).

We uphold the ALJ's factual findings in a workers' compensation case if they are supported by substantial evidence in the record. § 8-48-308, C.R.S.2011. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Benuishis v. Indus. Claim Appeals Office, 195 P.3d 1142, 1144-45 (Colo.App.2008). We must consider the evidence in the 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. Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970, 972 (Colo.App.2006).

The weight and credibility given expert witnesses' testimony is within the ALJ's discretion and may not be disturbed absent a showing that the ALJ's credibility determi[553]*553nation is overwhelmingly rebutted by hard, certain evidence to the contrary. Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220, 224-25 (Colo.App.2008).

In concluding that employer's medical expert rendered a "non-opinion" on causal relatedness that did not contradict the opinions of claimant's treating physicians, the ALJ specifically relied on the following eollo-quy between claimant's counsel and the expert:

Q: Is it still your opinion that my client did suffer at least a temporary exacerbation on November 8th of a preexisting condition that resolved by December 9th .. [?]

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321 P.3d 548, 2011 WL 4837503, 2011 Colo. App. LEXIS 1632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loofbourrow-v-industrial-claims-appeals-office-of-state-coloctapp-2011.