Opinion
W.C. No. 4-744-646 W.C. No. 4-746-515.
May 12, 2010.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated November 23, 2009, that awarded the claimant ten percent whole person impairment and found that the respondents had not established that apportionment of medical benefits was appropriate. We set the order aside and remand for entry of a new order.
The claimant suffered an industrial injury on February 20, 2007 when a steel security door closed onto the claimant's left hand. The claimant was eventually diagnosed as having complex regional pain syndrome (CRPS) and underwent a Division-sponsored independent medical examination (DIME) with Dr. Zuehlsdorff A hearing was held on a number of issues but on the relevant issue here, the ALJ made the following pertinent finding of facts:
There was no clear and convincing evidence that the opinions of Dr. Zuehlsdorff regarding the causal relationship of the claimant's February 20, 2007 injury and the development of CRPS is incorrect. Dr. Ramaswamy disagrees that Claimant developed CRPS as a result of the February 20, 2007, injury based upon one medical record, a missed medical appointment and Claimant's lack of credibility. Dr. Ramaswamy's opinions and conclusions constitute a difference of medical opinion that is insufficient to overcome Dr. Zuehlsdorff s causation opinion, apportionment or impairment ratings. Claimant concedes Dr. Zuehlsdorff s opinion on apportionment. Consequently, the development of CRPS was 50 percent attributable to the claimant's work injury of February 20, 2007 (WC 4-744-646) and the non-work injury that occurred in early March 2007. Claimant also had a 10 percent whole person impairment. (Finding of Fact § 63 at 11-2).
The ALJ determined that the claimant had established entitlement to maintenance medical benefits for treatment of the work-related CRPS. The ALJ further found the respondents had not established that such medical benefits should be apportioned.
I.
The respondents first contend the ALJ erred in awarding the full impairment rating provided by the DIME physician despite having determined that the non-work related March 2007 incident substantially contributed to the development of the claimant's CRPS. The claimant concedes that the DIME physician (Zuehlsdorff) apportioned causation on the claimant's CRPS between February 20, 2007 and a subsequent event with a car seat occurring some weeks later in March 2007. However, the claimant maintains that only after apportionment was the claimant accorded a ten percent whole person rating by the DIME physician. The claimant points to the DIME Examiners Sheet as showing that the impairment rating for his work related CRPS was ten percent whole person.
Here the ALJ made the following relevant determinations:
As found, the DIME physician, Dr. Zuehlsdorff ultimately opined that Claimant had CRPS type I as a result of a combination of two injuries, one of which occurred at work on February 20, 2007, and a non-work related injury in early March 2007. Dr. Zuehlsdorff concluded that the CRPS was 50 percent attributable to the work injury and 50 percent attributable to the non-work injury. Claimant concedes this apportionment thus, respondents bear the burden of overcoming such opinion by clear and convincing evidence because Respondents seek a determination that Claimant's CRPS is not related to any work injury. (Conclusion of Law § 7 at 13-14).
Claimant concedes Dr. Zuehlsdorff s opinion on apportionment. Consequently, the development of CRPS is 50 percent attributable to Claimant's work injury of February 20, 2007, (WC 4-744-646) and the non-work injury that occurred in early March 2007. Claimant, therefore, has a 10 percent whole person impairment. (Conclusion of Law § 8 at 14).
Respondents have not overcome the DIME opinion of Dr. Zuehlsdorff. Consequently, Claimant's CRPS is 50 percent attributable to his February 20, 2007, industrial injury and Claimant has a 10 percent whole person impairment. (Order § 1 at 16).
We cannot discern what was the exact award of PPD benefits. The ALJ may have determined that the claimant is entitled to an award of PPD benefits in the amount of five percent whole person impairment because he suffered a total ten percent whole person impairment only 50 percent of which is attributable to the industrial injury. On the other hand the ALJ may, as suggested by the claimant, have intended to award a total ten percent whole person rating under some theory that Dr. Zuehlsdorff opined the claimant had a ten percent whole person rating after apportionment was made by him. Therefore, we remand for clarification of this issue.
II.
The respondents next contend that the ALJ erred in ordering the respondents to pay for reasonable and necessary medical treatment related to the claimant's CRPS despite finding that 50 percent of the claimant's ongoing CRPS is the result of a non-work related March 2007 incident. The ALJ here awarded medical benefits after maximum medical improvement (MMI) as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The respondents appealed contending the ALJ erroneously refused to consider apportionment of liability for medical benefits.
A.
The respondents first argue that after the claimant suffered his compensable injury he suffered a worsening of that condition as a result of an intervening cause. The respondents argue that there is no evidence in the record that outlines what medical treatment the claimant would need for his CRPS condition that is solely attributable to the February 20, 2007 injury. Therefore, the respondents contend ALJ Broniak erred in awarding any maintenance care related to the February 20, 2007 injury. We are not persuaded by this argument advanced by the respondents.
The cause of the claimant's need for treatment is a question of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Therefore, we are bound by the ALJ's determinations if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Here the ALJ specifically found that the claimant had established that "he developed CRPS as a result of his work injury on February 20, 2007, and the non-work injury in early March 2007."
In our view, Bennett v. Bennett Plumbing Backflow Services, W.C. No. 4-702-985 (March 23, 2009), aff'd, Bennett v. Industrial Claim Appeals Office No. 09CA0761 (Colo. App. January 28, 2010) (not selected for publication) is not applicable to the present case. In Bennett, the claimant did establish the threshold burden of proving that he suffered disability as a direct causal result of the industrial injury. Here the ALJ accepted the claimant's argument, at least in part, that the claimant had developed CRPS as a result of the February 20, 2007 industrial injury. In our view the opinions of the DIME physician, and the opinions of Dr. Watson both support this determination. Exhibit D at 81; Exhibit N at 207-09. Therefore, we are not persuaded, on this basis, to interfere with the ALJ's order.
B.
The respondents in the alternative argue that the ALJ erred in not apportioning claimant's medical maintenance award between the February 20, 2007 work injury and the March 2007 non-work related injury. The respondents argue that the ALJ found that 50 percent of the claimant's ongoing CRPS condition was the result of a subsequent intervening disability. Therefore, the respondents contend that they should, at most, be responsible for only 50 percent of the treatment necessary to treat the claimant for his CRPS condition.
We think it appropriate to note preliminarily that this case is not affected by the recent legislative changes on apportionment. Senate Bill 08-241 made significant changes to § 8-42-104, C.R.S. However, S.B. 08-241 specifically provided that the effective date was July 1, 2008 and applied to injuries occurring on or after said date. Colo. Sess. Laws 2008, Ch. 335 at 1676. The work injury here occurred on February 20, 2007 and we therefore will not consider S.B. 08-241.
Additionally, we preliminarily note that this case involves accidental injuries rather then an occupational disease. Here, the ALJ found that on February 20, 2007 a steel security door closed onto the claimant's left hand. The ALJ further determined that the claimant had established that he developed CRPS, at least in part, as a result of his work injury on February 20, 2007. Neither the parties nor the ALJ discussed the issue of whether the claimant involved an accidental injury as distinguished from an occupational disease. However, the parties have treated the claim as an accidental injury and further the time and place of the specific activity causing the injury can be reasonably determined; therefore, in our view the claim has been considered accidental, rather than resulting from an occupational disease. See Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). Therefore, we will address the issue of apportionment in the context of the occurrence of an accidental industrial injury.
Here, the ALJ noted that the respondents' primary argument was the claimant's CRPS was not a result of any industrial injury; therefore, they should be relieved of the obligation to pay for medical treatment related to the CRPS. However, the ALJ found the claimant had established that he developed CRPS as a result of his work injury on February 20, 2007 and the non-work injury in early March 2007. The ALJ further found the respondents had failed to establish that apportionment of medical benefits was appropriate. The ALJ found that the respondents had cited no authority that would permit such apportionment and the ALJ stated she was aware of none applicable to the facts as she found them.
We are unable to ascertain the basis of the ALJ's conclusory finding that the respondents failed to establish that apportionment of medical benefits was appropriate. It appears the ALJ may simply have concluded that there is no authority that would permit apportionment of medical benefits.
The ALJ may have had in mind the difficult issue of apportionment involving non-industrial pre-existing conditions. We are aware of the Panel's observation in Stahl v. Durango Fire and Rescue Auth., W.C. No. 4-560-612 (October 18, 2006), affd, Durango Fire and Rescue Authority v. Industrial Claim Appeals Office, (Colo. App. No. 06 CA 226, September 20, 2007) (not selected for publication) that the question of apportionment of certain compensation was "unsettled" referring to the line of cases apportioning temporary total disability benefits and medical benefits. See Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004); University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001); State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo. App. 1985). Duncan v. Industrial Claim Appeals Office, supports apportionment between current and past employers in cases involving temporary or medical benefits where the claimant's condition is caused by successive industrial injuries and both injuries contribute to the disability and need for additional treatment. The Panel has previously stated that Duncan does not authorize apportionment of medical benefits to a preexisting, non-industrial condition where that condition is aggravated by, accelerated by, or combines with an industrial injury to produce the need for treatment. Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005). In Resources One, LLC v. Industrial Claim Appeals Office, 148 P.3d 287 (Colo. App. 2006), the court noted the lack of explicit statutory authorization for the apportionment of medical and temporary benefits and held that no such right exists for prior non-industrial conditions. Resources One, LLC v. Industrial Claim Appeals Office involved apportionment of benefits related to a preexisting non-industrial condition.
However, here the issue concerns the effect of a clearly separate unrelated injury that occurred after the industrial injury. If the need for treatment results from an intervening injury unrelated to the industrial injury, treatment of the subsequent condition is not compensable. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo. App. 2002) (this presents a question of fact). An efficient intervening injury may sever the causal relationship between the claimant's work injury and resulting disability. Post Printing Publishing Co. v. Erickson 94 Colo. 382, 30 P.2d 327 (1934)
The question of apportionment in the instant case does not involve a preexisting condition, but a subsequent non-industrial injury in March 2007. The ALJ, crediting the opinion of the DIME physician, found that the development of CRPS was the result of a combination of two injuries, one of which occurred at work on February 20, 2007 and a non-work related injury in early March 2007. The ALJ's conclusion that the development of CRPS was 50 percent attributable to the claimant's work injury of February 20, 2007 and 50 percent attributable to the non-work related injury in March 2007 and was made pursuant to the DIME report.
The principle here is different from the usual apportionment rule. The situation here is the reverse of what is generally discussed under "apportionment." Here, the compensable disability came first and a subsequent noncompensable injury is superimposed upon it. See 9 Larson, Workers' Compensation Law § 90.02. We do not read the ALJ's order as finding that given the facts of the case an appropriate apportionment could not be determined. Rather, it appears that the ALJ concluded that apportionment of medical benefits was not allowed under Colorado law.
At least two court of appeals decisions have upheld the apportionment of liability for temporary disability and medical benefits between two employers and their insurers where the claimant suffered successive industrial accidents. See University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001); State Compensation Insurance Fund v. Industrial Commission 698 P.2d 807 (Colo. App. 1985). Further, we regard Duncan v. Industrial Claim Appeals Office as authority for the apportionment between successive industrial injuries that contribute to temporary disability and need for medical treatment. Manson v. Dawn Trucking, W.C. No. 4-641-314 (December 17, 2007); Goffinet v. Cocat Inc. W.C. No. 4-677-750 (December 15, 2006), aff'd, Goffinett v. Industrial Claim Appeals Office (Colo. App., No. 07CA0045, Nov. 21, 2007) (not selected for publication).
The cases applying apportionment to medical benefits view the issue in terms of causation. See University Park Care Center v. Industrial Claim Appeals, supra. In University Park Center, the claimant brought a workers' compensation claim for a back injury allegedly suffered while working for a former employer and aggravated while working for the current employer. The ALJ awarded medical benefits and apportioned liability between current and former employers. The Court of Appeal held that evidence was sufficient to support the finding that former and current employers were equally liable for claimant's condition.
Generally, our courts have held that where a claimant's need for medical treatment may be traced to two or more industrial injuries, the ALJ has authority to apportion benefits in proportion to the contribution of each injury. State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo. App. 1985); Cuherpin v. Foley's, W. C. No. 4-279-368 (February 21, 2001); Waterfield v. Poudre Valley Hospital, W.C. No. 4-165-022 (June 16, 1998); Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997). The claimant has not pointed to any authority to the effect that because the subsequent injury was not a work-related accident apportionment is not appropriate. We are not aware of a barrier to an ALJ's determination which of two injuries caused the need for medical treatment, even if one is not an industrial accident. See generally Hunteman v. Weld County School District No. 6 W. C. No. 4-213-422 (June 12, 2002).
The question of whether apportionment is appropriate is essentially one of fact. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999). Similarly, the extent to which various causative factors contributed to the claimant's disability or need for medical treatment is also a question of fact for the ALJ. Ramirez v. Garfield's Off Broadway, W.C. No. 4-689-414 (March 13, 2007). The cause of the claimant's need for treatment is a question of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, supra. Because these questions are factual in nature, we are bound by the ALJ's determinations and are not at liberty to make such factual determinations ourselves.
Here the ALJ's findings suggest that she may have misapplied the law in apportioning liability for the claimant's benefits. Where there is substantial evidence that a claimant's temporary disability and need for medical treatment is attributable to more than one injury, the ALJ may apportion liability for temporary disability and medical benefits. See State Compensation Insurance Fund v. Industrial Commission, supra.; Williams v. Pizza Hut W.C. No. 4-448-209 (October 22, 2002); Summerhill v. Safetran Traffic Systems, Inc., W. C. No. 4-175-170 (July 2, 1998); Price v. Colorado Dept. of Corrections, W.C. No. 3-965-037 et. al. (March 16, 1994); Watts v. Eben Ezer, W.C. No. 3-905-560 et. al (February 14, 1994).
On remand, the ALJ shall make a determination of whether or not the respondents have carried their burden to demonstrate that the claimant's need for medical treatment may be traced not only to the industrial injury, but to a subsequent intervening accident, and if so what contribution each injury played in the continued need for medical treatment.
III.
The respondents finally contend that the ALJ erred in not allowing an offset of the claimant's permanent partial disability (PPD) benefits. The respondents, citing 8-43-103(1)(C), argue that they presented evidence that the claimant began receiving Social Security Disability (SSDI) as of May 27, 2009 and that they should be allowed to take an appropriate offset against the claimant's PPD award. The claimant in his reply brief has stipulated that his benefits are subject to the SSDI offset as provided under 8-42-103. Therefore, we are persuaded that the ALJ on remand should modify her order to allow the respondents to take an appropriate SSDI offset against the award of PPD benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated November 23, 2009 is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
BOB LANCASTER, AURORA, CO, (Claimant)
ARAPAHOE COUNTY SHERIFF DEPARTMENT, CENTENNIAL, CO, (Employer)
COUNTY TECHNICAL SERVICES, Attn: DEBBIE MCDERMOTT, DENVER, CO, (Insurer)
LAW OFFICE OF O'TOOLE SBARBARO, PC, Attn: NEIL D. O'TOOLE, ESQ., DENVER, CO, (For Claimant)
DWORKIN, CHAMBERS, WILLIAMS, Attn: GREGORY K CHAMBERS, ESQ., C/O: YORK, BENSON EVANS, PC, DENVER, CO, (For Respondents)
ARAPAHOE COUNTY SHERIFF DEPARTMENT, Attn: GEORGE SHIPLEY, LITTLETON, CO, (Other Party)