Opinion
W.C. Nos. 4-421-296 4-443-241
February 5, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant suffered a compensable occupational disease and awarded temporary disability and medical benefits. We affirm.
On December 17, 1998, the claimant slipped and fell on ice at work. The claimant reported the accident, but did not report any injuries. In January 1999, the claimant sought treatment from Dr. Hindes for complaints of neck pain and right upper extremity numbness. Although the claimant reported the December fall, Dr. Hindes attributed the claimant's symptoms to overhead work activities.
The claimant was also examined by Dr. Ryan who opined the claimant's cervical symptoms were work-related. In particular Dr. Ryan opined that the claimant overhead looking and overhead reaching at work aggravated the claimant's pre-existing degenerative disc disease of the cervical spine.
In contrast, Dr. Dinkle attributed the claimant's symptoms to poor posture and opined there was no compensable disease process resulting directly from the conditions of the claimant's employment. (Dinkle depo. pp. 14-15).
Dr. Primack, who examined the claimant in October 1999 opined the claimant suffered no work-related injury in December 1998. However, Dr. Primack did not address whether the claimant's overhead reaching activities aggravated his degenerative disc disease.
On May 10, 1999, Dr. Landrum recommended the claimant's transfer to the day shift because the night shift required more overhead work than the day shift. Dr. Landrum later restricted the claimant from overhead work. On June 28, 1999, the claimant was laid off because the employer was unable to accommodate his medical restrictions. The claimant returned to work temporarily but was again laid off due to his work restrictions.
In December 1999 the claimant filed a workers' compensation claim which alleged a disability was caused by the December 17, 1998 slip and fall. The claim was assigned as W.C. No. 4-443-241. The respondent denied liability and did not offer medical services.
The claimant filed a second workers' compensation claim which alleged an injury on April 10, 2000, when he struck his head on a conduit. That claim was delineated as W.C. No. 4-421-296. It is undisputed the claims were subsequently consolidated.
Crediting the opinions of Dr. Hindes, Dr. Landrum and Dr. Ryan, the ALJ found the claimant suffered a compensable occupational disease in W.C. No. 4-443-241 from overhead work activities which aggravated his pre-existing degenerative disease to the cervical spine. The ALJ also found the claimant sustained his burden to prove that his wage loss after June 28, 1999 was a direct result of the occupational disease. Therefore, the ALJ awarded temporary total disability benefits for the claimant's lost time from work commencing June 29, 1999.
On the issue of medical benefits, the ALJ found the respondent failed to designate a treating physician when the claimant reported the injury on May 21, 1999. Therefore, the ALJ determined the right of selection passed to the claimant, and the claimant chose to treat with Dr. Landrum. The ALJ also determined the treatment by Dr. Landrum and his referrals was reasonably necessary to cure and relieve the effects of the occupational disease. Therefore, the ALJ ordered the respondent to pay for the treatment by Dr. Landrum and his referrals after May 21, 1999.
I.
On review the respondent first contends the ALJ erred in finding the claimant suffered a compensable occupational disease. We disagree.
An occupational disease is a disease which results directly from the conditions under which the claimant performs his employment, and "can be fairly traced to the employment as a proximate cause." Section 8-40-201(14), C.R.S. 2001; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The fact that a claimant has a preexisting condition or injury does not preclude the claimant from proving a compensable injury due to the development of an occupational disease which aggravates the preexisting condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Pain can be a symptom caused by the aggravation of a preexisting condition. Insofar as the pain triggers the claimant's need for medical treatment, the claimant has suffered a compensable injury. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). In other words, the claimant is entitled to medical benefits to cure or relieve the aggravation, so long as the pain is proximately caused by the industrial aggravation and is not simply a direct and natural consequence of the original injury. See § 8-41-301(1)(c), C.R.S. 2001 ; § 8-42-101(1)(a) ,C.R. S. (2001); Parra v. Ideal Concrete, W.C. No. 4-179-455 (April 8, 1998); Witt v. James J. Keil Jr., W.C. No. 4-225-334 (April 7, 1998).
Furthermore, the aggravation does not need to be "substantial" or "permanent" to support the finding of a injury. See 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). The statutory requirement for proof of a "substantial permanent aggravation" only applies to the assignment of liability between multiple employers or insurers when the claimant develops an occupational disease in one employment and the disease is substantially and permanently aggravated in subsequent employment. Section 8-43-304(1), C.R.S. 2001; Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ's findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as 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).
Contrary to the respondent's contention, the claimant's initial belief that his condition was due to the fall on December 17, 1998, did not preclude the ALJ from finding that the symptoms were caused by an occupational disease and not the December 17 accident. Furthermore, there is no dispute the issue of whether the claimant suffered a compensable injury was properly before the ALJ for adjudication. Therefore, it is immaterial which claim number the ALJ assigned to the claimant's occupational disease.
The respondent's remaining arguments on this issue have been considered and do not alter our conclusions. Admittedly, the claimant was performing modified duty on May 5, 2000 when Dr. Landrum reported there was "no change" in the claimant's condition. However, in his prior clinic note dated April 12, 2000, Dr. Landrum reported the claimant showed improvement since November. Based on this evidence the ALJ could infer there was medical evidence the claimant's condition improved when he was not performing overhead activities.
II.
Next, the respondent contends the ALJ failed to resolve conflicts in the medical evidence concerning the claimant's entitlement to temporary disability benefits. Again, we disagree.
To receive temporary disability benefits, the claimant must prove the injury caused a disability. Section 8-42-103(1), C.R.S. 2001; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). As stated in PDM, the term "disability" refers to the claimant's physical inability to perform regular employment. See also McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995). Once the claimant has established a "disability" and a resulting wage loss, the entitlement to temporary disability benefits continues until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 2001.
Under § 8-42-105(3)(c), C.R.S. 2001, temporary disability benefits terminate when the attending physician gives the claimant a release to return to her regular employment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). For purposes of this statute, the attending physician's opinion of the claimant's ability to perform regular or modified employment is dispositive. However, the Court of Appeals has also found that over time it is possible for the claimant to have multiple attending physicians who issue conflicting opinions concerning the claimant's ability to return to regular employment. The court has held that in these circumstances, the question of whether the claimant has been released to return to employment is one of fact for resolution by the ALJ. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Here, the record indicates the claimant had multiple treating physicians with conflicting opinions concerning his ability to return to work. Within his sole prerogative the ALJ resolved the conflict against the respondent by expressly rejecting the opinions of Dr. Primack and crediting the contrary opinions of Dr. Hindes, Dr. Landrum and Dr. Ryan. See Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ's credibility determinations adequately inform reviewing court how ALJ resolved conflicts in the evidence). Moreover, the medical evidence the ALJ found persuasive supports his finding that the claimant sustained his burden to prove he was temporarily disabled from performing his regular employment.
III.
Finally, the respondent contends the ALJ erroneously considered the issue of "authorization" when it was not endorsed for adjudication. Again, we disagree.
The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondent's expense. Popke v. Industrial Claim Appeals Office, supra.
Section 8-43-404(5)(a), C.R.S. 2001, provides that the employer or insurer has the right in the first instance to "select the physician to attend [the] injured employee." If the employer or insurer exercises its right to select the treating physician, the claimant may not change physicians or employ additional physicians without obtaining permission from the employer, insurer, or an ALJ. In particular, § 8-43-404(5)(a) establishes that "upon the proper showing" to an ALJ the claimant may obtain permission to have a personal physician or chiropractor attend the injury. However, if the employer fails timely to tender the services of a physician, the right of selection passes to the claimant and the claimant is entitled to have the physician he selects be an authorized treating physician. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
The respondent does not dispute it failed to tender the services of a physician in May 1999 when the claimant reported the occupational disease. Further, the record contains a letter dated March 8, 2001, in which claimant's counsel requested the respondent to provide a treating physician. There is no dispute the respondent did not tender medical treatment upon receipt of the March 8 letter. Under these circumstances, the claimant's Application for Hearing on the issue of "change of physician," necessarily put the respondent on notice the claimant sought a determination that the right of selection passed to the claimant and that he requested permission to treat with a physician of his selection. Consequently, the respondent had adequate notice of the pertinent issue to be resolved was "authorization" of medical treatment and its due process rights were not violated by the ALJ's finding that Dr. Landrum and his referrals are authorized.
IT IS THEREFORE ORDERED that the ALJ's order dated July 26, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
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Kathy E. Dean
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. 2001. 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 February 5, 2002 to the following parties:
Joseph M. Sninchak, 5176 Youngfield Ct., Aurora, CO 80002
Public Service Company of Colorado, c/o Michelle Scholes, G.E. Young Co., 4251 Kipling St., #510, Wheat Ridge, CO 80033
Xcel Energy, 414 Nicollet Mall, Minneapolis, MN 55401
Dennis E. Valentine, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100 Denver, CO 80202 (For Respondent)
BY: A. Pendroy