FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Gallegos (ALJ) and Administrative Law Judge Snider (ALJ Snider) which awarded temporary disability benefits from September 15, 1998, to October 19, 1998. We affirm.
On March 31, 1998, the claimant suffered a work-related injury during a slip and fall. He was transported to the emergency room where he was treated for a skull laceration. The respondents admitted liability for a head injury. On April 6, 1998, the stitches were removed and Dr. Shure placed the claimant at maximum medical improvement (MMI). In August 1998, the claimant sought treatment from his personal physician for complaints of back pain. An MRI revealed a herniated disc. The claimant was subsequently referred to Dr. Ribovich who surgically repaired the disc herniation on September 17, 1998. On May 4, 1999, the claim filed a workers' compensation claim which alleged a back injury on March 31, 1998. The respondents denied liability. In support, the respondents' relied on Dr. Aschberger's opinion that it was unlikely the claimant's back condition was caused by the industrial accident.
In an order dated March 23, 2000, the ALJ determined the claimant sustained his burden to prove he suffered a compensable back injury on March 31, 1998. Furthermore, the ALJ found the claimant was temporarily and totally disabled from the date of surgery to October 19, 1998, when he was medically released to return to regular employment. Therefore, ALJ Gallegos awarded temporary disability benefits. In an order dated November 8, 2000, ALJ Snider determined the temporary disability rate. The respondents timely appealed the November 8 order.
On appeal, the respondents contend there is not substantial evidence in the record to support the ALJ's finding of a causal relationship between the original injury and the claimant's back problems. The respondents contend the only evidence in support of the award is the claimant's "self-serving" testimony that he struck his back during the industrial accident. Further, the respondents argue the claimant's testimony is overwhelmingly rebutted by evidence the claimant did not report back pain at the time of the industrial injury, the claimant never sought treatment for back pain from Dr. Shure, and there are no medical reports of back pain until three months after the accident. We reject these arguments.
The question of whether the claimant has proven a compensable injury is one of fact for resolution by the ALJ, and the ALJ's findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ's credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). We conclude that the claimant's testimony is not overwhelmingly rebutted by hard, certain evidence to the contrary.
The claimant testified that the injury occurred when he fell down on a set of cement stairs and struck his back and head on the cement. (Tr. p. 14). He stated that he felt back pain "immediately" after the fall, but stated "it wasn't severe pain, and I didn't really think a whole lot about it because I didn't know that much about it then." (Tr. p. 15). He added that it eventually "started bothering me more." (Tr. p. 15). The claimant testified that he then began having problems getting out of bed and developed shooting pains down his leg. When a double dose of aspirin no longer provided relief, he sought treatment from his personal physician. The physician recommended the MRI which revealed the herniated disc. (Tr. p. 16).
The claimant admitted he did not initially report a back injury to the employer. The fact the claimant did not initially report a back injury, and did not seek treatment from Dr. Shure, is consistent with the claimant's testimony that the initial back pain was tolerable. (Tr. p. 23). Similarly, the testimony of the claimant's supervisor that the claimant did not complain of back pain until 3 months after the accident does not directly refute the claimant's testimony that he struck his back on the stairs and his back condition gradually worsened. Therefore, we cannot say the ALJ erred as a matter of law in crediting the claimant's testimony. See Halliburton Services v. Miller, supra.
The ALJ also found Dr. Ribovich opined the claimant's back problems "are probably related to the fall if there was no intervening injury." The respondents arguments to the contrary, the ALJ did not misinterpret Dr. Ribovich's testimony concerning the cause of the claimant's back pain. Dr. Ribovich noted the discrepancies in the history taken by the treating physicians, and stated that resolution of the causation issue was dependent on the facts of the case. (Ribovich depo. pp. 11, 16). He opined that if the claimant had absolutely no symptoms until five months after the accident then, he would agree with Dr. Aschberger's opinion that "its improbable that the accident caused" the claimant's back problems. (Ribovich depo. pp. 11, 13). However, he stated that if the claimant had back pain shortly after the accident which markedly worsened some months later, then "it's probably related to the fall if there was no intervening injury of note." (Ribovich depo. p. 6). Moreover, Dr. Ribovich admitted it is "fairly frequently" the case that a patient suffers an accident and the symptoms worsen over a number of months. (Ribovich depo. p. 8).
The ALJ expressly found that the claimant "is a credible witness who reported feeling immediate back pain at the time of the accident and bruising to his side/hip and left elbow as a result of the fall." (Finding of Fact 3). The ALJ also credited the claimant's testimony that he had no back pain immediately preceding the industrial accident and suffered no intervening injury. (Tr. pp. 19, 20). Under these circumstances, the ALJ reasonably inferred that Dr. Ribovich was of the opinion that the claimant's back problems were the proximate result of the industrial fall.
Moreover, the testimony of the claimant and Dr. Ribovich is substantial evidence to support the ALJ's finding of a causal relationship between the claimant's back pain and the industrial injury. Therefore, we may not interfere with the ALJ's finding of a compensable injury.
II.
The respondents contend the claimant is barred from receiving temporary disability benefits after April 6, 1998, where as here, the claimant has not requested a Division- sponsored independent medical examination (DIME) to dispute Dr. Shure's finding of MMI. We disagree.
Section 8-42-105(3)(a), C.R.S. 2000, provides that temporary total disability benefits terminate when the claimant reaches MMI. Under § 8-42-107(8)(b), C.R.S. 2000, an authorized treating physician's determination of MMI is conclusive of the claimant's entitlement to further temporary disability benefits unless the party disputing the MMI determination requests a DIME. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
We have previously held that the status of MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury. Bernard v. Current, Inc., W.C. No. 4-213-664 (October 6, 1997) ; Carrillo v. Farmington PM Group, W.C. No. 3-111-178 (August 26, 1997); Powell v. L D Electric, W.C. No. 4-150-716 (March 21, 1997). We adhere to our previous conclusions. It follows that there is no medical determination of MMI for purposes § 8-42-107(8)(b), until an authorized treating physician has placed the claimant at MMI for all compensable components of the injury.
Here, the ALJ determined that the industrial accident caused both head and back injuries. Therefore, insofar as Dr. Shure only placed the claimant at MMI for the head injury, Dr. Shure's MMI determination did not trigger the DIME provisions in § 8-42-107(8)(b).
In any case, the question of whether the claimant was at MMI on April 6, 1998, is separate and distinct from whether the claimant's condition from the work-related injury remained stable through September 1998. This is true because a claimant can reach MMI and suffer a subsequent deterioration to the point that he is no longer at MMI. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Consequently, the IME provisions of § 8-42-107(8)(b) are not applicable where the claim for additional benefits is based upon the allegation of a worsened condition which occurs after the date of MMI. A worsened condition after MMI does not constitute a "constructive challenge" to the treating physician's prior determination of MMI. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
The claimant alleged, and the ALJ found that, the claimant's compensable back injury gradually worsened until September 17, 2000, when surgical treatment became reasonably necessary to cure and relieve the effects of the injury. The ALJ also determined that as a result of the worsening the claimant was medically restricted from performing his regular employment until October 19, 1998. See City of Colorado Springs v. Industrial Claim Appeals Office, supra. Under these circumstances, the claimant's request for temporary disability benefits does not challenge Dr. Shure's April 1998 finding of MMI. Consequently, the claimant's failure to request a DIME on the issue of whether he was at MMI in April 1998 did not preclude the ALJ from awarding temporary disability benefits commencing September 15, 1998.
IT IS THEREFORE ORDERED that the ALJs' orders dated March 23, 2000, and November 8, 2000, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 20, 2001 to the following parties:
David Minard, 1375 High St., #405, Denver, CO 80218
First Watch Security, 1395 S. Platte River Dr., Denver, CO 80223-3467
Sharon Thompson, Support Services, P. O. Box 3513, Englewood, CO 80155-3513
Carol Einck, Hospital Shared Services, 1395 S. Platte River Dr., Denver, CO 80223-3467
Hospital Shared Services, Inc., Support Services, Inc./Hospital Insurance Trust, 7335 E. Orchard Rd., #100, Englewood, CO 80155-3513
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
Anne Smith Myers, Esq. and Benjamin E. Tracy, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Hurtado