Opinion
W.C. Nos. 4-113-829, 4-387-127
January 31, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ), which awarded workers' compensation benefits in W.C. No. 4-113-829 for injuries sustained on January 9, 1997. The claimant contends the ALJ erred in failing to compensate the new injury in W.C. No. 4-387-127. We reverse and remand.
W.C. No. 4-113-829 involves an admitted left shoulder injury on May 3, 1991. On July 11, 1996, the authorized treating physician placed the claimant at placed at maximum medical improvement (MMI). On January 9, 1997, while returning home from an appointment with the authorized treating physician, the claimant was involved in a motor vehicle accident. Thereafter, the claimant filed W.C. No. 4-387-127 and requested additional medical and temporary disability benefits for a low back injury suffered in the motor vehicle accident.
Based on the "quasi-course of employment" doctrine, the ALJ found that the claimant injuries suffered in the motor vehicle accident are compensable. Relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), and Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993), the ALJ further determined that the claimant was not required to file a new workers' compensation claim because the injuries "relate back to the original work related injury." Consequently, the ALJ dismissed and denied the claim for benefits in W.C. No. 4-387-127, and awarded additional medical benefits in W.C. No. 4-113-829. The ALJ also awarded temporary total disability benefits based on the claimant's average weekly wage at the time of the 1991 injury.
Initially, we reject the respondents' contention that the ALJ's order is not a "final order" for purposes of review. A "final order" is an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty." Section 8-43-301(2), C.R.S. 1999; Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Here, the ALJ required the respondents to pay temporary disability and medical benefits on account of the 1997 injury. Furthermore, the ALJ denied and dismissed the claimant's request for benefits in W.C. No. 4-387-127. Because the order requires the respondents to pay "benefits" and denies the claimant a "benefit," it is subject to review.
However, there is still a question of whether the claimant filed a timely petition to review, which is a jurisdictional prerequisite to our review. Jurisdiction cannot be conferred by consent, and therefore, the respondents' concession that the petition to review was timely filed is not dispositive. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
Section 8-43-301(2), C.R.S. 1999, provides that a petition for review must be filed within twenty days of the date of the certificate of mailing of the ALJ's order. The ALJ's specific findings of fact contains a certificate of mailing dated February 5, 1999. However, it is undisputed that neither party had actual notice of the order until April 30, 1999.
Claimant's counsel filed a petition to review on May 7. He also filed a motion to amend the certificate of mailing on the ALJ's specific findings of fact. The ALJ subsequently caused the issuance of a new certificate of mailing dated June 5, 1999. We construe this action as an implicit determination that the specific findings were not mailed to the parties on February 5, 1999, as originally indicated. Consequently, the time period for filing a petition to review did not commence on February 5, 1999. The claimant filed her petition to review within 20 days of the actual notice of the ALJ's order, which was before the new certificate of mailing was issued. Under these circumstances, we conclude that the claimant's petition was timely filed. See Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994); see also Haynes v. Troxel, 670 P.2d 812 (Colo.App. 1983) (premature motion for new trial timely under rule stating that motion must be filed "not later than fifteen days after entry of judgment."); Cook v. TLJ Staff Builders Inc., W.C. No. 4-277-752 (May 6, 1998); Tindell v. Adolph Coors Company, W.C. No. 3-988-873 (September 9, 1991).
On review, the claimant contends the ALJ erred as a matter of law in finding that the 1997 injury is compensable under the 1991 injury claim and is not a separate injury which must be compensated in W.C. No. 4-387-127. We agree.
To prove a compensable injury, the claimant must establish a causal connection between the injury and the employment. Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999). Under the "quasi-course of employment" doctrine, an injury occurring during travel to or from authorized medical treatment for an industrial injury is compensable. This is true because the employer is required to provide medical treatment for the industrial injury and the claimant is required to submit to the treatment. Excel v. Industrial Claim Appeals Office, supra. Therefore, the treatment becomes an implied part of the employment contract, and injuries while attending authorized medical treatment, are considered to be a consequence of the original industrial injury.
Relying on Excel v. Industrial Claim Appeals Office, supra, we have previously held that an injury sustained while a claimant was engaged in authorized treatment for an industrial injury was compensable as part of the original industrial injury. See Ballinger v. City of Colorado Springs, W.C. No. 4-154-631 (October 7, 1996); Campbell v. Citadel Mall, W.C. No. 3-785-414 (November 19, 1993). The facts in Ballinger involved a compensable back injury. Four months after MMI, the claimant injured his shoulder while engaged in physical therapy for the back injury. Because the shoulder injury was compensable under the "quasi-course of employment" doctrine, we concluded that the claimant is entitled to additional temporary disability and medical benefits due on account of his "worsened" condition from the compensable consequences of the original injury.
However, in City of Colorado Springs v. Industrial Claim Appeals Office, supra, a division of the court disagreed with our characterization of the shoulder injury as a "worsening" of the back injury. To the contrary, the court questioned how an injury to a separate part of the claimant's body almost a year after the original injury could be anything other than a "second injury."
Similarly, in Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994), the court reversed our conclusion that injuries sustained during an on-the-job training program designed to rehabilitate the claimant from the effects of a prior industrial injury, were compensable components of the original injury and not a second, separate injury for purposes of imposing Subsequent Injury Fund (SIF) liability. See section 8-46-101(1)(a), C.R.S. 1999 (SIF liability where combined industrial injuries render claimant permanently totally disabled). The Citadel Mall court held that because the later injury occurred during a second and subsequent employment relationship, the second injury is not compensable under the first injury claim. See also Public Service Company of Colorado v. Industrial Claim Appeals Office, (Colo.App. No. 98CA2120, July 22, 1999) (not selected for publication) (injury while on restricted duty from admitted injury is second injury and not a compensable consequence of admitted injury so disability benefits based on wages at the time of the second injury).
Furthermore, in Walsh Healthcare Center v. Industrial Claim Appeals Office (Colo.App. No. 98CA1539, May 27, 1999) (not selected for publication), the court concluded that the claimant's disabling carpal tunnel syndrome (CTS) which developed as a result of injuries sustained during a motor vehicle accident on the way to authorized medical treatment for a prior injury was compensable under the "quasi-course of employment" doctrine. However, the Walsh court rejected our conclusion that the claimant is entitled to temporary disability benefits based on her temporary disability rate for the prior injury. Relying on Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994), and § 8-42-104(1), C.R.S. 1999 (average weekly wage calculation for successive injuries), the court concluded that the claimant is limited to temporary disability benefits based upon her lower average weekly wage at the time of the "second" injury. Furthermore, the court noted that the holding is consistent with Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, 964 P.2d 591 (Colo.App. 1998).
In Employers, the claimant suffered injuries during a motor vehicle accident on the way to obtain authorized medical treatment for a work-related injury. However, the claimant had already settled the work-related injury claim. The PIP carrier brought a subrogation action against the workers' compensation carrier for benefits paid as a result of the injuries sustained in the motor vehicle accident. The court held that the new injuries did not result from the original industrial injury, and thus, the claimant's signed release did not eliminate the workers' compensation carrier's liability to the PIP carrier for amounts paid on account of the motor vehicle accident. The court reasoned that because the new injuries would have provided the basis for a second claim, the injuries sustained in the auto accident did not result from the original industrial injury and were not part of the first claim. The court also refused to distinguish between new injuries suffered while attending authorized medical care and "any other later industrial injury, not resulting from [the claimant's] weakened condition." Id. 870 P.2d at 593, 594.
Although none of these court opinions directly involve the issue before us in the identical context, we believe they are a strong indication of the Court's view, and therefore, follow them. Accordingly, we hold that the claimant's January 1997 injury is a second, separate injury.
IT IS THEREFORE ORDERED that the ALJ's order dated February 5, 1999, is reversed. The respondents shall pay all temporary disability and medical benefits awarded on account of the January 1997 injury in W.C. No. 4-387-127, and the matter is remanded to the ALJ to determine the claimant's temporary disability rate in W.C. No. 4-387-127.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Dona Halsey
___________________________________ David Cain
Examiner Cain specially concurring:
I concur with the conclusion that the order of the ALJ must be reversed. Because of strongly worded dicta contained in the published appellate decisions cited in the majority decision, particularly in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), it is my understanding of the law that "quasi-course of employment injuries" are to be treated as distinct compensable events for purposes of determining the claimant's entitlement to benefits and the respondents' liabilities. In other words, quasi-course injuries give rise to "new claims."
However, because I concur with Examiner Dean that the published decisions which relate to this issue are either factually or legally distinguishable from the specific facts before us, I write separately to express my agreement with the opinions set forth by Examiner Dean in the dissent. In my view, the quasi-course of employment doctrine was not created to give rise to "new claims." Rather, the quasi-course of employment doctrine was created to describe the potential range of compensable consequences stemming from the underlying industrial injury. Thus, quasi-course injuries should not be treated any differently, for purposes of determining benefits and liabilities, than complications which are said to be the natural and proximate results of the underlying industrial injury. Eg., Standard Metals Corp. v. Ball, 172 Colo. 510,474 P.2d 622 (1970). The artificial importing of tort conceptions of proximate cause into the distinct, statutory realm of workers' compensation law can only result in distorted results for both claimants and respondents. In my view, there is no logical distinction, for purposes of determining benefits and liabilities, between a claimant who suffers pneumonia as a proximate result of a compensable chest injury, and a claimant who sustains additional injuries while on his way to the doctor's office for treatment of the underlying workers' compensation injury. Both events are, for purposes of workers' compensation law, compensable only because of their relationship to the underlying workers' compensation injury. Therefore, if I did not feel constrained by the published appellate opinions cited in the majority decision, I would affirm the order of the ALJ.
Examiner Halsey:
As stated in the majority decision, I believe the relevant cases support a conclusion that the claimant's back injury is a separate injury. I write separately to express the following. As I understand the quasi-course of employment doctrine, it is merely a contrived legal concept of compensability which provides the requisite connection between the employment and an injury which would not otherwise be considered to have arisen out of and in the course of employment. See 1 Larson's Workers' Compensation Law, § 10.05 (1999) This doctrine, in my view, does not dictate the conclusion that the latter injury must be considered to be, or treated as part of the initial injury. I do not believe the cited cases require that every quasi-course of employment injury must be considered a separate injury. Rather, I believe the issue is generally a factual question for the ALJ, based on the individual facts presented. Cf. F.R. Orr Construction v. Rinta, 717 P.2d 1000 (Colo.App. 1985). Further, I disagree that no meaningful distinctions can be drawn. In this case, the claimant sustained a coincidental injury to a different body part in an automobile accident some six years after the original injury. This is clearly distinguishable from a case, for example, where a second injury is caused by the weakened condition of an injured body part. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). In the former circumstances, the second injury is caused by an independent event which is only indirectly related to the initial injury, whereas in the latter case, the second injury has a direct causal link to the first. While other fact patterns may be more difficult to resolve, I do not believe this warrants a conclusion that quasi-course of employment injuries are or should be treated as the same injury. Indeed, given the availability of continuing medical benefits after the date a claim is otherwise closed, and the limitation period for reopening, compensation could well be unavailable for a second injury if that injury must be considered an extension of the original injury. Therefore, absent clear authority to the contrary, I see no reason for departing from the above-mentioned Court decisions.
Examiner Dean dissents:
In the view of Professor Larson proximate and natural consequences of an industrial injury and "quasi-course of employment" injuries are both considered to be within the range of compensable consequences of the "primary" (original industrial injury). 1 Larson's Workers Compensation Laws, § 10.01 et. seq. (1999). As such, these injuries are distinguished from injuries caused by a separate, efficient intervening event. As a result, injuries during travel to authorized medical treatment are compensable consequences of the primary injury and not attributable to a separate causative factor. The majority's reasoning does not create a clear or rational distinction between those injuries which occur during medical treatment required by the primary injury and medical complications from treatment of the primary injury.
Moreover, despite the caselaw discussed by the majority opinion, the court has not previously resolved the exact issue presented on review in this case in a published decision. In City of Colorado Springs v. Industrial Claim Appeals Office, supra, a division of the court questioned our characterization of the shoulder injury as a "worsening" of the back injury. However, the court did not determine whether the shoulder injury was only compensable under a separate claim. Consequently, the court's discussion of the shoulder injury as a "second injury" is dicta. To the contrary, the court recognized that the fact the "second" injury resulted from treatment for the first injury may require that the permanent impairments be considered together.
Furthermore, the court's reliance on Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, supra, as authoritative support for its conclusion in Walsh Healthcare Center v. Industrial Claim Appeals Office, supra, is concerning. Unlike the facts in Walsh, the claimant in Platte Valley did not suffer a "second injury" in the "quasi-course of employment" from the original industrial injury. Instead, she suffered an injury arising out of her reemployment with a new employer after the earlier injury.
Finally, Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, supra, is legally distinguishable from the issue presented here. The Employers court reasoned that the claimant's new injuries during the motor vehicle accident to obtain authorized treatment for a previous industrial injury would have provided the basis for a second claim, and therefore, the new injuries did not result from the original industrial injury and were not part of the first claim. However, the automobile accident had no causal relationship to the claimant's employment except that it occurred while obtaining treatment for a prior industrial injury. Under these circumstances, the basis for the court's conclusion that the accident would have supported a new claim is unclear. In any case, the Employers court did not purport to determine whether, under the circumstances presented here, the claimant has suffered two separate injury claims. Rather, the court limited its determination to "the issue presented before us." Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, 974 P.2d at 594.
In contrast, the court in Citadel Mall v. Industrial Claim Appeals Office, supra, reversed our conclusion that injuries sustained during an on-the-job training program designed to rehabilitate the claimant from the effects of a prior industrial injury are compensable components of the original industrial injury and not a second, separate injury for purposes of imposing SIF liability. The Citadel Mall court held that because the later injury occurred during a second and subsequent employment relationship, the second injury is not compensable in the first injury claim. Therefore, the court held that we erred in applying Excel v. Industrial Claim Appeals Office, supra, to preclude a defemination that the second injury was not a separately compensable incident for purposes of SIF liability.
Citadel Mall reflects the court's conclusion that where the claimant's injuries are the result of a separate, new employment relationship and thus, compensable regardless of the "quasi-course of employment" doctrine, the injuries constitute a separate workers' compensation claim. This conclusion is not inconsistent with the conclusion that where the only connection between the activity which caused the injury and the claimant's employment is a prior industrial injury, the new injuries are considered to fall within the range of compensable consequences of the original injury and thus, are compensated in the original injury claim.
Here, the only causal connection between the claimant's employment and the low back injury is that the motor vehicle accident occurred as a result of medical treatment the claimant required for the admitted shoulder injury. Therefore, this examiner would affirm the ALJ's determination that the 1997 injury is compensable in the 1991 injury claim.
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed January 31, 2000 to the following parties:
Tammy Fischer-Muck, 2000 Johnston Dr., Manitowoc, WI 54200
Interim Healthcare of Southeastern Colorado, 1901 N. Union, #202, Colorado Springs, CO 80909
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority nka Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
BY: A. Pendroy