Opinion
W.C. No. 4-148-045.
March 2, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied medical benefits for treatment of chronic diabetes. We affirm.
In 1992 the claimant suffered an admitted low back injury and was treated with steroids. The claimant was subsequently diagnosed with adult onset Type II chronic diabetes. The respondents did not timely pay for medical treatment of the industrial injury, which was stressful to the claimant.
On conflicting medical evidence the ALJ found that neither the "litigation stress" nor the steroid treatment caused the diabetes. Therefore, the ALJ denied medical benefits for treatment of the chronic diabetes. However, the ALJ found the steroid treatment and the stress caused by the litigation process temporarily exacerbated the diabetic condition.
The ALJ's order required the respondents to pay the cost of medical treatment for the temporary exacerbation of the diabetes caused by the steroid use. However, expressly relying on Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002), the ALJ determined the temporary aggravation from litigation stress was not compensable.
On review the claimant contends the ALJ erred in denying medical benefits for treatment of chronic diabetes where the ALJ found no cause for the onset of diabetes other than the industrial aggravation. The claimant also argues the ALJ misapplied the law in finding the requested treatment was not compensable because the claimant would likely have required treatment for diabetes even without the steroid use. We disagree.
The claimant suffers a compensable occupational disease when the industrial injury is the incident of the work or a result of the exposure occasioned by the nature of the work. However, in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that where the occupational exposure is not a precondition to the development of the disease, the claimant suffers an occupational disease only to the extent that the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought.
It is the claimant's burden to prove a causal relationship between an industrial aggravation and the need for treatment. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Whether the claimant has sustained her burden of proof is a question of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Consequently, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Initially, we reject the claimant's contention that the ALJ misapplied the law. The ALJ expressly recognized that treatment for the temporary aggravation of a non-industrial condition is compensable. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949); Boone v. Industrial Claim Appeals Office, (Colo.App. 98CA1731, January 20, 2000) (not selected for publication), Lux v. The Garden Apartments, W.C. No. 3-772-933 (April 23, 1990) (vascular surgery for non-work-related condition compensable where surgery necessary to promote healing of industrial injury). The ALJ also implicitly recognized that under such circumstances, benefits are only payable for so long as the industrial exposure is the proximate cause of the claimant's need for medical treatment. See Merriman v. Industrial Commission, supra; Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988); see also Conry v. City of Aurora, W.C. No. 4-195-130, April 24, 1996. (industrial ammonia exposure resulted in compensable temporary aggravation of pre-existing asthma).
Contrary to the claimant's contention the ALJ did not find the steroids and stress were necessary preconditions to the claimant's development of chronic diabetes. Rather, the ALJ determined the claimant's underlying diabetes was a pre-existing, non-industrial condition which would have become symptomatic and required treatment regardless of the industrial aggravation. (Finding of Fact 6). The ALJ's finding is amply supported by the medical opinions of Dr. Setty, Dr. Jacobs and Dr. Richman and, therefore, must be upheld on review. Moreover, the findings supports his conclusion that only treatment of the temporary aggravation was compensable. Thus, it was unnecessary for the ALJ to determine exactly what combination non-industrial factors including genetic predisposition, obesity and dietary indiscretion caused the claimant's diabetes.
Further, the ALJ did not determine the precise duration of the compensable medical benefits. Therefore, the claimant's argument that she is entitled to medical benefits for treatment of the onset of diabetic symptoms is premature.
The claimant also contends the ALJ erroneously relied on Jarosinski v. Industrial Claim Appeals Office, supra. We disagree.
It is well established that respondents are liable for the natural consequences of an industrial injury. Vanadium Corp. of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957). In Jarosinski v. Industrial Claim Appeals Office, supra, the claimant argued that stress or depression caused by the litigation process of the workers' compensation claim is naturally incident to the underlying injury under a "quasi-course of employment" doctrine.
The "quasi-course of employment" doctrine provides that an injury occurring during travel to or from authorized medical treatment is compensable because the employer is required to provide medical treatment for the industrial injury and the claimant is required to submit to the treatment. Therefore, the treatment becomes an implied part of the employment contract, and injuries sustained while attending the authorized medical treatment, are considered to be a consequence of the original industrial injury. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993).
In Jarosinski the court held that psychological problems resulting from "litigation stress" are distinguishable from the type of injuries covered by the quasi-course of employment doctrine because when exercising their statutory right to defend a claim the respondents are not engaged in an activity secondary to the employment contract. Id. at 1085. Rather, the court held that the litigation process of a workers' compensation claim are entirely outside the employment contract except that such a contract must exist for any benefits to be awarded. Thus, the court concluded that although adjustment practices of the respondents may give rise to tort liability for bad faith claims, litigation stress operates as an intervening event, not a compensable consequence of the industrial injury. Id. at 1086.
The claimant argues Jarosinski is confined to its facts and is otherwise distinguishable. Admittedly in Turner v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA1958, December 2, 2004), a division of the court concluded that Jarosinski is limited to psychiatric or cardiac problems caused by stress associated with litigation or travel to attend hearings. Nevertheless, we perceive no error in the ALJ's finding that the claimant's stress reflects a psychiatric condition analogous to the litigation stress in Jarosinski.
The ALJ found that the claimant's stress was not the result of the industrial injury but the respondents' adjusting practices. The ALJ's finding is supported by substantial evidence in the claimant's testimony. Further, the ALJ's findings support his determination that insofar as the diabetes was temporarily aggravated by stress, the aggravation was not caused directly by the industrial injury but rather, by the claimant's emotional reaction to the respondents' adversarial actions in adjusting the claim. Under these circumstances, the ALJ reasonably inferred that the aggravating factor was analogous to "litigation stress."
IT IS THEREFORE ORDERED that the ALJ's order dated August 4, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Karen S. Malloy, Limon, CO, Lincoln Community Hospital, Englewood, CO, Colorado Hospital Association Trust, c/o Mary Ann Donelson, Support Services, Inc., Englewood, CO, Steven U. Mullens, Esq., Colorado Springs, CO, (For Claimant).
Fred Ritsema, Esq., Denver, CO, (For Respondents).