FINAL ORDER

The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied his claim for medical benefits. The claimant argues that the ALJ's findings of fact concerning causation are not supported by the evidence. The claimant further argues the ALJ was required to apply apportionment concepts when determining the causation issue. We affirm the ALJ's order.

The ALJ found the claimant sustained a compensable ankle injury which aggravated preexisting degenerative joint disease. Subsequently, one of the claimant's physicians recommended surgery described as a subtalar arthrodesis. The issue before the ALJ was whether the need for surgery was causally connected to the industrial injury.

The ALJ noted that one physician opined there was a relationship between the injury and the need for surgery, another physician opined there was a "possible" relationship, and a third physician stated that the need for surgery was caused by the claimant's preexisting arthritis and "would have occurred even without the accident in a very brief period of time."

The ALJ credited the report and testimony of the third physician. Consequently, the ALJ concluded there was no causal relationship between the industrial injury and the need for surgery and denied the claim for medical benefits. The ALJ also stated that because the issue was medical benefits the issue of apportionment under § 8-42-104, C.R.S. 1998, did not arise.

I.

On review, the claimant argues the ALJ's finding concerning causation is not supported by the evidence. The claimant cites the report of the treating physician who opined there was a relationship between the injury and the surgery, and also relies on the report of the physician who stated there was a "possible" relationship. There was no error.

Section 8-41-301(1)(c), C.R.S. 1998, provides that the right to compensation is dependent upon proof that the injury was "proximately caused by any injury or occupational disease arising out of and in the course of" the employment. Section 8-43-201, C.R.S. 1998, provides that the claimant has the burden of proof to establish entitlement to benefits by a preponderance of the evidence. Consequently, respondents are entitled to dispute whether the need for particular treatment is causally related to the industrial injury, and the claimant bears the burden of proof on the "threshold requirement" of causation. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).

The question of whether the claimant carried the burden of proof on causation is one of fact for determination by the ALJ. Snyder v. Industrial Claim Appeals Office, supra; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we may not interfere with the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In applying this standard we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, we must presume the ALJ's findings are supported by the evidence where no transcript has been designated. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).

Here, there is absolutely no basis to interfere with the ALJ's resolution of the conflicting expert opinions concerning causation. The ALJ acted within his authority to credit the report of the physician who opined that the claimant's need for surgery was unrelated to the industrial injury. Moreover, the ALJ stated in his order that reliance on this physician's opinion was reinforced by the physician's testimony at the hearing. Because the claimant did not designate a transcript, we are obliged to assume that the ALJ's findings concerning this testimony are supported.

II.

The claimant next contends that in determining the cause of the need for surgery the ALJ was required to apply the apportionment principles announced in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), and its progeny. The claimant argues that the preexisting arthritis may not be "apportioned out" as the sole cause of the need for surgery because it was asymptomatic and not disabling at the time of the industrial injury. However, the ALJ correctly ruled that, for purposes of medical benefits, the apportionment principles contained in Askew are inapplicable.

In Askew, the court considered § 8-42-104(2), C.R.S. 1998, and established rules for apportionment of medical impairment benefits in cases where the claimant has preexisting medical impairment. The court ruled that preexisting medical impairment is not subject to apportionment under the statute unless it has been "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." The court further held that preexisting impairment must be disabling in that it affected the claimant's capacity "to meet personal, social, or occupational demands." Id. at 1337-1338. These principles have subsequently been applied in cases involving permanent total disability. E.g., Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).

However, the principles identified in Askew have no application to medical benefits. Section 8-42-104(2), by its own terms, applies only to awards of "Permanent total, permanent partial, including scheduled, working unit, and lump sum" benefits. The apportionment statute does not apply to awards of medical benefits, and neither does the case law which interprets that statute. As we stated in Martin v. Montrose Memorial Hospital, W.C. No. 4-348-316 (July 10, 1998), the Act "contains no provision authorizing apportionment of temporary disability and medical benefits between an industrial injury and preexisting conditions." Indeed, the only authority for apportionment of medical benefits concerns cases where the need for medical treatment is the result of two compensable industrial injuries. State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985); Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997).

It follows that the ALJ was free to determine the causation issue without regard to Askew or § 8-42-104(2). We decline to extend or interpret Askew in a manner which would allow apportionment of medical benefits where the industrial injury aggravates or accelerates a preexisting non-industrial condition. Rather, if the industrial injury aggravates or accelerates a preexisting condition, employers are fully liable for necessary medical treatment. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the question of whether the industrial injury aggravated or accelerated the preexisting condition remains a factual issue for the ALJ. Snyder v. Industrial Claim Appeals Office, supra.

Insofar as the claimant makes other arguments, we find them to be without merit.

III.

The respondents seek an award of attorney fees pursuant to § 8-43-301(14), C.R.S. 1998. They argue that the appeal is not well grounded in fact, especially in light of the claimant's failure to designate a transcript. They also assert that the claimant's argument predicated on apportionment principles does not constitute a "good faith argument for the extension, modification, or reversal of existing law."

We deny the request for attorney fees. We are unaware of any published appellate decision which directly considers the issue of whether, and to what extent, Askew applies where the issue involves causation of the need for medical treatment. Askew itself presented questions of first impression concerning the relationship between causation and the apportionment of medical impairment benefits. Arguably, the case altered existing law by incorporating into the Act apportionment concepts contained in the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). Due to be evolving law concerning the interplay of causation and apportionment, we cannot say that the claimant's appeal is the product of bad faith, nor can we say it was "interposed for any improper purpose."

IT IS THEREFORE ORDERED that the ALJ's order dated November 16, 1998, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain

______________________________ Bill Whitacre

NOTICE

This Order is final unless an action to modify or vacate the order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.

Copies of this decision were mailed April 13, 1999 to the following parties:

Phil Torgerson, 10271 W. 59th Ave., #A, Arvada, CO 80002

Mike Loser, Wycon Construction, P. O. Box 405, Broomfield, CO 80038-0405

Brian Heaton, Republic Indemnity of California, 5110 N. 40th St., #201, Phoenix, AZ 85018

Crawford Co., P.O. Box 6502, Englewood, CO 80155

W. Clark Litten, Esq., 50 S. Steele St., #586, Denver, CO 80209 (For Claimant)

Jeffrey Fleishner, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)

By: AP