Opinion
W.C. Nos. 4-357-688, 4-386-527, 4-390-936 4-410-543
December 22, 2000
ORDER OF REMAND
Respondents Best Western Landmark Hotel (Best Western), and its insurer, Lumbermens Mutual Casualty Co. (collectively, Lumbermens respondents) seek review of an order of Administrative Law Judge Corchado (ALJ) holding them liable for injuries which the claimant sustained on March 19, 1998, and July 1, 1998. The Lumbermens respondents argue that these injuries should be treated as compensable consequences of a 1997 injury, which the claimant sustained while Best Western was insured by respondent Wausau Insurance Companies (Wausau). The Lumbermens respondents further contend the ALJ erred in calculating the claimant's average weekly wage for purposes of awarding temporary total disability benefits. We affirm the order in part, reverse it in part, and remand for further proceedings.
In 1997 the claimant sustained compensable injuries to both upper extremities while employed by Best Western. At the time of these admitted injuries, Best Western was insured by Wausau. Then, the claimant's average weekly wage was $316.
On March 19, 1998, the claimant was injured in an automobile accident while traveling to receive authorized medical treatment for the 1997 injury. Apparently, these injuries involved the claimant's neck, back, and shoulders. (Tr. p. 37). The physicians who treated the claimant for the March 19 accident prescribed numerous medications including muscle relaxers, pain medication, and psycho-active medication. (Tr. p. 38). The claimant testified that at time of the March 19 injury she was earning less than in 1997 because she needed to go to doctor appointments and physical therapy sessions several times per week. (Tr. p. 36).
On July 1, 1998, the claimant injured her right ankle while performing duties for Best Western. The ALJ credited the claimant's testimony and medical evidence that the claimant twisted her ankle because the medication prescribed for the March 19 injury caused her to become dizzy.
Under these circumstances, the ALJ ordered the Lumbermens respondents to pay temporary total disability benefits commencing April 1, 1999, and all medical benefits reasonable and necessary to treat the March 19 and July 1, 1998 injuries. In so doing, the ALJ concluded that the March 19 and July 1 incidents constituted "new compensable injuries" rather than compensable consequences of the 1997 injury. Further, the ALJ based the award of temporary disability benefits on the claimant's 1997 average weekly wage because he concluded the claimant's earnings in March and July 1998 do "not fairly represent [the claimant's] average weekly wage rate given the circumstances of this case."
I.
On review, the Lumbermens respondents argue that because the March 19 automobile accident occurred in the "quasi-course of employment," it constitutes a compensable consequence of the 1997 injury rather than a "new injury." Thus, the Lumbermens respondents reason that Wausau is liable for the March 19 injuries. The Lumbermens respondents cite Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993), as authority for this proposition. We reject this argument.
In Fischer-Muck v. Interim Healthcare of Southeastern Colorado, W.C. No. 4-113-829 (January 31, 2000) (Examiners Cain and Halsey concurring, Examiner Dean dissenting), we held that injuries which the claimant sustained in an automobile accident while returning home from authorized medical treatment gave rise to a new claim for benefits, and that the injuries were not a compensable consequence of the prior industrial injury. This result was primarily based on the Court of Appeals decisions in Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d 591 (Colo.App. 1998), and City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
In Employers Fire Insurance, the court distinguished between injuries which result from a "weakened condition" caused by an initial industrial injury, and injuries sustained while going to or coming from authorized medical treatment. The court noted that if additional injuries result from a "weakened condition" stemming from the original industrial injury, the additional injuries are compensable because they are a natural, albeit not necessarily direct, result of the original injury. In contrast, injuries sustained when a claimant is traveling to or from authorized treatment are compensable not because they were "caused" by the prior industrial injury, but "because the law requires an employer to furnish such [medical] services to the employee, and as a result, the journey to and from the physician's office is considered to be part of the employment." Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d at 593. Thus, the court in Employers Fire Insurance concluded that an injury which the claimant sustained while traveling to the office of an authorized physician "would have provided the basis for a second claim" and "was not a part of [the] first claim." Id. at 594.
In City of Colorado Springs v. Industrial Claim Appeals Office, supra, the claimant sustained a back injury and reached maximum medical improvement (MMI) on September 1993. Four months after reaching MMI, the claimant sustained an injury to his shoulder as a result of using an exercise machine to treat his back. In dicta, the court stated it was "difficult to understand how a separate injury to an entirely distinct body part, occurring more than one year after the first injury, can be considered to be a 'worsening of condition' caused by the original injury." 954 P.2d at 640.
Applying these principles here, the ALJ's findings support his legal conclusion that the March 19 injury constituted a "new injury" rather than a compensable consequence of the 1997 injury. Under the analysis espoused in Employers Fire Insurance, the claimant's travel to the authorized medical treatment constituted a legal adjunct of the employer- employee relationship, not travel "caused" by the 1997 industrial injury. Hence, the injuries sustained during the travel constitute a separate compensable event for purposes of workers' compensation. Fischer-Muck v. Interim Healthcare of Southeastern Colorado, supra; see also Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) (travel at the express or implied request of the employer has been held compensable where it confers a benefit beyond the employee's mere arrival at work).
The Lumbermens respondents' reliance on Excel Corp. v. Industrial Claim Appeals Office, supra, does not persuade us to reach a contrary conclusion. First, the Excel court was not called upon to decide whether injuries sustained while traveling to or from authorized medical treatment constitute "new injuries" or "compensable consequences" of a prior industrial injury for purposes of workers' compensation. Rather, the court merely held that such "quasi-course of employment" injuries are compensable even if though they do not result from a "weakened condition" caused by the initial injury. Moreover, the opinion in Excel explicitly states that travel to and from authorized medical treatment "becomes an implied part of the employment contract" because the employer must provide medical treatment, and the claimant is required to submit to it. Thus, the Excel decision lends some support to the theoretical distinction drawn by the Employers Fire Insurance court.
Neither are we persuaded by the Lumbermens respondents' argument that treatment of quasi-course of employment injuries sustained while traveling to or from authorized treatment as "new injuries" necessarily leads to "absurd results." The Lumbermens respondents hypothesize a fact pattern in which the claimant was working for a "new employer" rather than Best Western at the time of the 1998 automobile accident. The Lumbermens respondents argue that the new employer and its insurer could not be held liable for the consequences of the March 1998 automobile accident. We agree with this statement so far as it goes. However, under the Employers Fire Insurance analysis, the claimant's travel for treatment would be considered an adjunct of her former employment relationship with Best Western, and Best Western's insurer at the time of the accident would be liable for the benefits. It is true the claimant's employment contract with Best Western would have ended, but the entire purpose of the "quasi-course" doctrine is to attenuate the ordinary time, place, and cause requirements inherent in compensability determinations. Excel Corp. v. Industrial Claim Appeals Office, supra.
The Lumbermens respondents also seek to distinguish Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., supra, by hypothesizing a situation in which the claimant settled the 1997 workers' compensation claim with Wausau prior to the March 19, 1998 injury. The Lumbermens respondents argue that, in such event, neither Wausau nor Lumbermens could be responsible for the 1998 injury. Logically, the Lumbermens respondents assert, they cannot be held liable in the current situation where the claim has not been settled. However, the Lumbermens respondents' argument does not follow. If the March 1998 injury had occurred after a full and final settlement of the 1997 claim, the employer would not have had any obligation to provide ongoing medical treatment, and the claimant would not have had any obligation to cooperate with the treatment in order to receive benefits. Thus, injuries sustained in the March 1998 automobile accident would have been the non-compensable product of the claimant's personal decision to seek treatment, not an adjunct of the claimant's contractual relationship with Best Western. See Schrieber v. Brown and Root, Inc., 888 P.2d 274 (Colo.App. 1993) (injuries sustained by claimant when seeking unauthorized medical treatment did not fall under the quasi-course of employment doctrine because the trip was not "an implied condition or expectation" of the employment relationship). However, when the claim has not been settled and the employer has a continuing duty to provide medical treatment, the relationship described by Employers Fire Insurance continues to exist, as does the potential liability for quasi-course of employment injuries.
II.
The Lumbermens respondents next contend the ALJ incorrectly characterized the July 1, 1998 ankle injury as a "new injury" rather than a compensable consequence of the March 1998 automobile accident. These respondents also assert that if the ALJ correctly characterized the July 1 injury as a "new injury," it was not compensable because the claimant's employment on July 1 did not present a "special hazard." We agree with the Lumbermens respondents that the July 1 injury was not a "new injury" under the applicable law. However, this does not alter the Lumbermens respondents' liability for the July 1 injury since they are also liable for the March 19 injury.
In Hembry v. Industrial Claim Appeals Office, 878 P.2d 114 (Colo.App. 1994), the claimant sustained a compensable back injury in 1987. The injury caused chronic back pain for which the claimant was prescribed medication . In 1991, the claimant was at work and fainted when he arose from a chair after a coffee break. The ALJ found that claimant's fainting and the resulting injuries were caused by the medication prescribed for the 1987 injury, and under the "ubiquitous conditions" present at the time of the 1991 fall. In these circumstances, the court concluded that, for purposes of determining Subsequent Injury Fund liability, the claimant sustained a single industrial injury in 1987. The court reasoned that because the fainting was initiated by medication prescribed for the 1987 injury, the claimant's fall was a natural consequence of that injury. Further, since no condition of the 1991 employment constituted a "special hazard" which contributed to the accident or the claimant's injuries, there was no new injury in 1991.
Here, the Lumbermens respondents do not dispute the ALJ's finding of fact that the claimant's ankle injury resulted from "dizziness caused by the medical treatment she received for the injuries sustained on March 19, 1998." (Finding of Fact 2). Further, the ALJ did not find, and the Lumbermens respondents do not argue, that the claimant's July 1 fall was the product of any "special hazard" present at Best Western. Consequently, Hembry v. Industrial Claim Appeals Office, supra, compels the legal conclusion that the July 1 injury was a natural and proximate result of the March 19 auto accident, and it did not constitute a "new injury" for purposes of workers' compensation.
Consequently, the ALJ's order is reversed insofar as it found the claimant sustained a new compensable injury on July 1, 1998. However, this does not relieve the Lumbermens respondents of liability for the July 1 ankle injury since it is a natural and proximate result of the March 19 injury, for which they are also liable. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). We need not consider the Lumbermens respondents' argument concerning the absence of a "special hazard" on July 1 since it is rendered immaterial by the ALJ's findings of fact and the resulting legal conclusion.
III.
The Lumbermens respondents next contend the ALJ erred in awarding temporary total disability benefits based on the claimant's average weekly wage at the time of the 1997 injury. Relying on Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994), the Lumbermens respondents argue the ALJ did not possess statutory authority to use the discretionary provision of § 8-42-102(3), C.R.S. 2000, to calculate a "fair" average weekly wage based on the claimant's earnings in 1997. We agree.
Section 8-42-104(1), C.R.S. 2000, provides that where the claimant has sustained successive workers' compensation injuries, the ALJ must use the employee's average weekly earnings "at the time of the later injury" in determining compensation. The quoted statutory language was enacted at the same time the General Assembly deleted the prior statutory reference to the claimant's "average weekly earning capacity" in § 8-42-102. 1991 Colo. Sess. Laws, ch. 219 at 1304. In Platte Valley Lumber the court held that the purpose of the 1991 statutory changes was to require "that benefits payable to a disabled employee for a later injury be based on the employee's average weekly wage of the time of the later injury," not the claimant's earnings at the time of some prior injury. Id. at 636. The Platte Valley Lumber court also held that the purpose of the 1991 amendments was to alter the result in Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993), in which the Supreme Court held that the predecessor to § 8-42-104(1) gave the ALJ discretion to calculate a "fair" average weekly wage in cases of successive injuries.
Under these circumstances, Platte Valley Lumber v. Industrial Claim Appeals Office, supra, is dispositive. The ALJ erred in basing the claimant's average weekly wage for the March 19 injury on the claimant's average weekly wage at the time of the 1997 injury. Because the ALJ did not determine the claimant's average weekly wage at the time of the March 19, 1998 injury, and we do not read the record as establishing that the parties reached a stipulation concerning this issue, the matter must be remanded to determine the claimant's average weekly wage on March 19, 1998, and for entry of an award in accordance with that determination.
We note, in case there are subsequent appeals, that the record appears to be incomplete despite our Order of Remand dated August 16, 2000. However, it does not appear that the pertinent factual findings are disputed by the appealing party. Consequently, we have adjudicated the appeal. In the event of a subsequent appeal, the ALJ and the parties shall insure the record is complete so as to avoid unnecessary remands and delays.
IT IS THEREFORE ORDERED that the ALJ's order dated December 16, 1999, is affirmed insofar as it determined the claimant sustained a "new injury" on March 19, 1998, and that the Lumbermens respondents are liable for compensation on account of this injury.
IT IS FURTHER ORDERED that the ALJ's order is reversed insofar as it determined the claimant sustained a "new injury" on July 1, 1998. Instead, the injury sustained on July 1, 1998, is determined to be a compensable consequence of the March 19, 1998 injury.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it ordered the Lumbermens respondents to pay compensation based on the claimant's 1997 average weekly wage. The matter is remanded for a determination of the claimant's average weekly wage on March 19, 1998, and entry of an order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Copies of this decision were mailed December 22, 2000 to the following parties:
Sunny Ferrenburg, 1030 Washington St., #11, Denver, CO 80203
Cheryl Marchetti, Best Western Landmark Hotel, 455 S. Colorado Blvd., Denver, CO 80246-8002
Brenda Wisniewski, Wausau Insurance Companies, P. O. Box 419157, Kansas City, MO 64141-6157
Dawn Kaup, Lumbermens Mutual Casualty Company, P. O. Box 5347, Denver, CO 80217
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents Best Western Landmark Hotel and Lumbermens Mutual Casualty Company)
William M. Sterck, Esq., P.O. Box 675, Loveland, CO 80539 (For Wausau Insurance Companies)
BY: A. Pendroy