Opinion
W.C. Nos. 4-521-119, 4-521-168
March 6, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which required them to pay medical and temporary disability benefits. We affirm.
On August 2, 1999, the claimant was stung by a bee in a compensable industrial accident. He later developed hives, vomiting, and diarrhea. The employer referred the claimant to the Langstaff-Brown Medical Center where the claimant was treated by Dr. Glanzer.
The claimant also contacted his primary care physician, Dr. Fletcher, who referred him to Dr. Ducharme. The ALJ found Dr. Ducharme prescribed Prednisone which the claimant took "sporadically" when he broke out with hives. On December 1, 1999, Dr. Ducharme prescribed a refill of 20 Prednisone tablets.
In July 2000, the claimant suffered a second compensable bee sting. The claimant reported the injury to the employer's District Manager, Larry Kaufman (Kaufman). The ALJ found Kaufman did not refer the claimant to a physician and instead gave consent for the claimant to treat with Dr. Ducharme. On August 1, 2000, the claimant obtained a prescription from Dr. Ducharme for 40 Prednisone tablets. Dr. Fletcher wrote a prescription for 25 tablets on April 27, 2001, which the claimant kept just in case he suffered another bee sting.
In August 2001 the claimant began experiencing pain in his left hip. An MRI revealed avascular necrosis (AVN) with mild subchondral collapse of the left hip. Dr. Phelps opined the AVN was probably caused by the claimant's ingestion of Prednisone. Dr. Crane opined that the claimant's alcohol consumption may have made him susceptible to AVN from small doses of Prednisone, and that the Prednisone "tipped the balance" and was the "immediate precipitating cause" of the AVN. (Tr. April 10, 2002, pp. 90, 97). Dr. Crane apportioned 75 percent of the cause of the AVN to the claimant's alcohol consumption and 25 percent to the Prednisone.
The ALJ found, and it is undisputed, that 80 percent of all AVN cases are idiopathic. Of the remaining 20 percent, the most common causative factors are long-term ingestion of steroids, alcohol use, trauma, and chemotherapy. Prednisone is a steroid medication. The ALJ also found the claimant consumed an average of one case of beer a week and that this level of consumption created a threshold risk of AVN. However, the ALJ found the claimant did not develop any AVN symptoms prior to the Prednisone use.
Giving the greatest weight to the opinions of Dr. Crane, the ALJ determined that even though the claimant ingested a much smaller daily dose of Prednisone than the dose which is usually associated with AVN, the claimant's AVN was probably not idiopathic and was the combined effect of the alcohol and Prednisone. Therefore, the ALJ determined the AVN was a compensable consequence of the bee stings and held the respondents fully liable for the AVN without apportionment.
The ALJ also determined the employer impliedly authorized the claimant to choose Dr. Ducharme as an authorized treating physician. Consequently, in addition to an award of temporary disability benefits, the ALJ ordered the respondents to pay for the medical care provided by Dr. Ducharme and his referrals after August 1, 2000.
On review, the respondents first contend the record is legally insufficient to support the ALJ's finding that the AVN is compensable. In support, the respondents contend that because the short-term use of steroids is not a common causative factor of AVN, the claimant's long-term alcohol consumption is the more likely cause of the AVN. Therefore, the respondents contend the ALJ erred in finding the AVN is compensable. We are not persuaded there is any basis to disturb the ALJ's determination.
It is the claimant's burden to prove a causal relationship between the industrial injury and the medical condition for which he seeks benefits. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Under the "quasi-course of employment" doctrine, injuries sustained during authorized medical treatment of an industrial injury are compensable. See Price Mine Service, Inc., v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0375, January 2, 2003); Excel v. Industrial Claim Appeals Office, supra; Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). The rationale for this doctrine is that because the employer is required to provide reasonable and necessary medical treatment, and the claimant is required to submit to it or risk suspension or termination of benefits, treatment by the physician becomes an implied part of the employment contract. See Price Mine Service, Inc., v. Industrial Claim Appeals Office, supra. Accordingly, the "quasi-course employment doctrine" creates the requisite connection between employment and an injury that would not otherwise be considered to have arisen out of and in the course of employment.
The question of whether the claimant proved the requisite causal connection between the bee stings and the AVN was a factual determination for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the question is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, and the plausible inferences which he 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).
The claimant was not required to prove causation by medical certainty. Rather, it is sufficient if the claimant presents evidence of circumstances indicating with reasonable probability that the condition for which he seeks medical treatment resulted from or was precipitated by the industrial injury, so that the ALJ may infer a causal relationship between the injury and need for treatment. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968). To the extent the claimant presents expert medical testimony to support his claim, it is the ALJ's prerogative to assess its weight and sufficiency. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Moreover, insofar as the medical testimony is inconsistent or subject to conflicting interpretation, we are bound by the ALJ's resolution of those inconsistencies and the plausible inferences drawn by the ALJ. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). This is true because the ALJ is considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Here, the medical evidence is subject to highly conflicting inferences concerning the proximate cause of the AVN. However, the ALJ's determination that the Prednisone treatment was the proximate cause of the AVN is a plausible inference from Dr. Crane's testimony. The ALJ's determination is buttressed by the absence of AVN from the claimant's alcohol use prior to the Prednisone treatment. (Tr. April 10, 2002, p. 53). Insofar as the respondents request that we reweigh the evidence on review, we have no authority to do so. We are bound by the ALJ's determination that the claimant established the requisite causal connection between the industrial injury and the AVN.
Relying on Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993), which holds that injuries sustained in the course of unauthorized treatment are not compensable, the respondents also contend the AVN is not compensable because the Prednisone was prescribed by Dr. Ducharme who was not an authorized treating physician. Again, we disagree.
The respondents are liable only for emergency and authorized medical treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Under § 8-43-404(5)(a), C.R.S. 2002, the insurer has the right in the first instance to designate the treating physician. The duty to designate the treating physician arises when the employer first has knowledge of the injury; if no designation is made, the right of selection passes to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
There is substantial evidence in the record that when the claimant reported the July 2000 bee sting to the employer, Kaufman asked the claimant whether he needed a referral for treatment. The claimant testified that he told Kaufman he was treating with Dr. Ducharme and would return to him to get more Prednisone, and then Kaufman replied "Go ahead do what you have to do." (Tr. August 15, 2002, p. 93). The claimant's co-worker corroborated the claimant's testimony. (Tr. August 15, 2002, p. 36). Kaufman stated he did not "recollect" that conversation with the claimant, but denied he would have given the claimant permission to treat with Dr. Ducharme. (Tr. August 15, 2002, pp. 20, 99). Insofar as Kaufman did not recall the conversation, his testimony did not directly refute the claimant's testimony. Based on this evidence, we cannot say the ALJ erred in crediting the claimant's testimony that Kaufman gave him permission to select Dr. Ducharme to treat the 2000 injury. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ's credibility determinations are binding unless the testimony is rebutted by such hard, certain evidence that the ALJ would err as a matter of law in crediting it). Furthermore, the testimony of the claimant and his co-worker supports the ALJ's determination that Dr. Ducharme became an authorized treating physician for the July 2000 bee sting. Therefore, the ALJ did not err in finding that the AVN is the compensable consequence of authorized treatment.
Further, the ALJ rejected the respondents' contention that the AVN was solely caused by the claimant's ingestion of Prednisone prior to July 2000. Rather, the ALJ determined the AVN was the cumulative effect of the Prednisone treatment in 1999 and 2000. The ALJ's determination is a plausible inference from the record, and therefore is binding on review. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Accordingly, it is immaterial Dr. Ducharme was not an authorized treating physician prior to the July 2000 bee sting.
The respondents also contend that the AVN would be compensable as a separate new claim in the nature of an occupational disease, and not as a component of the 1999 and 2000 bee stings. Therefore, the respondents contend the ALJ erred by failing to apportion 75 percent of the AVN to the claimant's non-occupational alcohol use in accordance with Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) (claimant is entitled to recovery for an occupational disease only to the extent that the hazards of employment caused, intensified, or aggravated the disability for which compensation is sought).
Relying on the court's conclusions in Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, 964 P.2d 591 (Colo.App. 1998); City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); and Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994), we have issued a series of decisions beginning with Fischer-Muck v. Interim Healthcare of Southeastern Colorado, W.C. No. 4-113-829 et. al (January 31, 2000), which held that quasi-course of employment injuries give rise to a new claim for benefits. However, in Price Mine Service, Inc., v. Industrial Claim Appeals Office, supra, the Court of Appeals held that quasi-course of employment injuries are compensable components of the original industrial injury. In so doing, the court concluded that Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, supra; City of Colorado Springs v. Industrial Claim Appeals Office, supra; and Citadel Mall v. Industrial Claim Appeals Office, supra, were factually distinguishable.
We are bound by the published opinions of the Court of Appeal. C.A.R. 35(f). Consequently, the ALJ did not err in failing to compensate the AVN as a new separate claim.
Moreover, because the AVN is a compensable component of the bee stings, and it is undisputed the bee stings were the result of "industrial accidents," not an "occupational disease," the ALJ properly refused to apply Anderson v. Brinkhoff, supra, to apportion liability for the AVN.
IT IS THEREFORE ORDERED that the ALJ's order dated September 27, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 2002. 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 March 6, 2003 to the following parties:
Paul Kneebone, 180 Summer Haven Dr., Woodland Park, CO 80863
Stacy Short, Ferrellgas, LP One Liberty Plaza, Liberty, MO 64068
Fidelity Guarantee Insurance Co., c/o Carrie Lashbrook, Cunningham Lindsey, P. O. Box 15401, Phoenix, AZ 85060
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
David J. Dworkin, Esq. and Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Hurtado