Opinion
W.C. No. 4-388-883.
December 5, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cain (ALJ) dated July 13, 2007 that ordered the insurer to pay for disputed medical treatment the claimant had received. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a compensable on-the-job injury on June 13, 1998. The claimant's injuries included severe head trauma with traumatic brain injury. Because of the injury, the claimant's brain lost the capacity to dissipate excess cerebrospinal fluid (CSF) that naturally accumulates in the head and the spinal cord. The claimant's physicians inserted a shunt so that the excess CSF could be drained into the peritoneal/abdominal cavity where it could be dissipated. In 2006, the claimant reported to Swedish Hospital with abdominal distention and severe headache. Dr. Harwood performed surgery to explore the abdominal cavity. The surgery revealed the presence of chronic inflammation and scarring in the peritoneal cavity and chronic appendicitis. Dr. Harwood initially believed that the inflammation in the claimant's peritoneal cavity was caused by the appendicitis but later changed his opinion and opined that the claimant developed a staphylococcal respiratory infection as a complication of his original head injury. The claimant underwent further treatment at Swedish Hospital and was then transferred to University Hospital where he underwent an insertion of a shunt into a pleural cavity, which has the capacity to dissipate excess CSF. Dr. Jacobs credibly opined that the claimant's headache, abdominal pain, and distention were the product of fluid accumulation in his abdomen, thereby causing him to seek treatment. Dr. Moroye credibly opined that the accumulation of fluid in the claimant's abdominal cavity was due to the combined effects of CSF draining through the shunt and the cavity's inability to absorb the fluid because of inflammation caused by appendicitis.
The ALJ concluded that the claimant had proved it was more probably true than not that the 1998 industrial injury was a proximate cause of the need for the disputed medical treatment, rather than the product of an efficient intervening cause. The ALJ ordered the insurer to pay for the disputed medical treatment.
On appeal, the respondents do not challenge that there was substantial evidence supporting the ALJ's order. Rather the respondents contend that the ALJ misapplied the law by concluding the respondents failed to demonstrate that a non-industrial intervening event severed the causal connection between the industrial injury and the claimant's need for medical treatment. The respondents' arguments notwithstanding, in our opinion the ALJ did not misapply the law in concluding that the 1998 industrial injury was a proximate cause of the need for the disputed medical treatment and, also, that the claimant's development of appendicitis and the consequent peritoneal inflammation and scarring were not efficient intervening causes of the need for treatment.
Under § 8-42-101(1)(a), C.R.S. 2007, respondents are liable for medical treatment that may reasonably be needed at the time of the injury and thereafter during the disability to cure and relieve the employee from the effects of the injury. That includes furnishing treatment for conditions due to a natural development of the industrial injury. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188 (Colo.App. 2002). In contrast, no liability exists when a later accident occurs as the direct result of an intervening cause. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934). However, the intervening event does not sever the causal connection between the injury and the claimant's condition unless the claimant's disability is triggered by the intervening event. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Vargas v. United Parcel Service, W.C. No. 4-325-149 (August 29, 2002).
The determination of whether the need for medical treatment is the result of an independent intervening cause is a question of fact for resolution by the ALJ. Owens v. Industrial Claim Appeals Office, supra. We must uphold the ALJ's factual findings which are supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2007; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
The respondents assert that the appendicitis constituted an intervening event, which severed the causal connection between the industrial injury and the claimant's need for treatment. In support of this assertion the respondents refer to the testimony of Dr. Jacobs. They argue that Dr. Jacobs testified that the symptoms which caused the claimant to seek treatment resulted from the appendicitis as the appendicitis caused the disease of the peritoneal cavity resulting in the fluid accumulation. The respondents therefore contend that although the ALJ credited Dr Jacobs' opinion, he misapplied the law and concluded that the claimant's need for medical treatment was proximately caused by the industrial injury. We disagree.
Here with record support the ALJ made the following findings. The claimant sought treatment at Swedish Hospital in 2006 because of headaches and distention of the abdomen. These symptoms were caused by a combination of two factors. First, the shunt, which was implanted to relieve the effects of the industrial injury, was draining CSF into the peritoneal cavity. Second, the peritoneal cavity was no longer able to absorb and dissipate the fluid because of the development of inflammation and scarring resulting from the non-industrial appendicitis. The medical records demonstrate the treatment rendered at Swedish Hospital was initially aimed at relieving these symptoms by trying to ascertain the cause of the accumulation of fluid. Further, exploratory surgery was performed to ascertain the cause of the fluid accumulation. After the cause of the problem was determined to be CSF accumulation resulting from the scarring of the peritoneal cavity, the shunt was initially externalized, and ultimately reinserted in the pleural space. If there had been no industrial injury, there would have been no need to externalize the shunt and ultimately reinsert it in the pleural cavity. Thus, the diagnostic procedures and the treatment rendered were partially aimed at relieving the effects of the industrial injury. The development of the appendicitis and resultant scarring of the peritoneal cavity were factors in the claimant's need for treatment in 2006 because they were the immediate cause of the retention of the CSF. However, they were not the sole causative factors. If there had been no CSF drainage into the peritoneal cavity the claimant would not have experienced the headaches and distention, although he might have needed treatment at some point for the appendicitis and peritoneal scarring. The ALJ concluded that because the symptoms and need for treatment were partially caused by the effects of the industrial injury, the development of the appendicitis and consequent peritoneal scarring were not efficient intervening causes of the need for treatment.
We do not agree with the respondents that the ALJ used the wrong legal standard when he considered whether the industrial injury was the proximate cause of the need for treatment. As noted by the ALJ the right to compensation obtains in cases where the injury is proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment. Section 8-41-301(1)(c), C.R.S. 2007. The ALJ's analysis is consistent with Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751, 753 (Colo.App. 1988) where the court of appeals in a fatality case noted that interpreting "proximately results from" to mean "proximately results only from" would result in a forced and strained construction of the statute.
The ALJ found that the claimant sought treatment for symptoms that were in part directly caused by the installation of the shunt and consequent drainage of CSF fluid into the peritoneal cavity. In our opinion the ALJ's finding is consistent with the analysis employed by the supreme court when it looked to whether the condition was "a result of" and "flowed from" the original injury. Standard Metals Corp., 172 Colo. at 515, 474 P.2d at 625.
Further, on the issue of the cause of the need for medical treatment the ALJ relied upon a number of cases including Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986), and Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) . The ALJ noted that in Singleton v. Kenya Corp., 961 P.2d 571 (Colo.App. 1998), the court of appeals interpreted the phrase "proximately caused" as referring to the nexus between the work-related injury and the employee's claimed disability. Singleton, 961 P.2d at 574. We again perceive no error in the ALJ's legal standard regarding proximate cause.
The respondents contend that the ALJ found that "but for" the appendicitis, the claimant would not have required treatment. We disagree. In his order, the ALJ did find that:
Dr. Jacobs further opined that the claimant's medical treatment at Swedish and University Hospital was the result of the appendicitis and not connected to the industrial injury or the VP shunt. Dr. Jacobs wrote that but for the appendicitis and intra-abdominal process this "hospitalization would have been totally averted and there would be no need to remove the shunt or replace the shunt."
Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 16. However, the ALJ also found that the appendicitis and scarring were not the sole causative factors because if there had been no CSF drainage into the peritoneal cavity the claimant would not have experienced the headaches and distention, although he might have needed treatment at some point for the appendicitis and peritoneal scarring. Order at 5, ¶ 20. The ALJ also found that Dr. Moroye credibly opined that the accumulation of fluid in the claimant's abdominal cavity resulted from the combined effects of drainage of CSF fluid through the shunt into the peritoneal cavity, and the peritoneal cavity's inability to absorb the CSF fluid because of the inflammatory process resulting from the appendicitis. Order at 4, ¶ 18. The ALJ concluded that because the symptoms and need for treatment were partially caused by the effects of the industrial injury, the development of the appendicitis and consequent peritoneal scarring were not efficient intervening causes of the need for treatment. Order at 5, ¶ 20.
In Owens v. Industrial Claim Appeals Office, it was undisputed that the claimant's cancer occurred independently of the industrial injury and although the claimant's industrial injury limited her treatment choices, it was the cancer, not her industrial injury, that actually created the need for the treatment. The sole purpose of the treatment in Owens was to eradicate any spread of the cancer, not to avoid a possible aggravation of the claimant's industrial injury or to otherwise alleviate symptoms related to it. In contrast here the ALJ found that the symptoms for which the claimant sought treatment for at Swedish Hospital were caused by a combination of two factors the first of which was that the shunt which was implanted to relieve the effects of the industrial injury, was draining CSF into the peritoneal cavity. Under such circumstances, we find no reversible error in the ALJ's determination that the industrial injury was a proximate cause of the need for the disputed medical treatment.
The respondents next contend that the ALJ erred in relying on Johnson v. Industrial Commission, in his discussion of the cause of the need for medical treatment. The ALJ noted that Johnson was a death case where an infection was found to be the immediate cause of death but the injury was a proximate cause of death. In our view, the ALJ correctly construed the case and Johnson is instructive in the present case.
In Johnson v. Industrial Commission, 148 Colo. 561, 366 P.2d 864 (1961) decedent sustained compensable injuries to his chest. He died 13 days later. The proof of death submitted by the treating physician stated that traumatic pneumonia was the immediate cause of death and injury to the chest wall was the remote cause of death. The autopsy report said the probable immediate cause of death was toxemia and heart failure and that death occurred as a complication of pneumonia and emphysema. The supreme court found that it was undisputed that the decedent died because the injury was a "confusing factor" that caused pain, which kept the decedent from coughing and clearing his bronchi and allowed the pneumonia to worsen and become fatal. The supreme court applied the phrase "proximately caused by" and held that the decedent's survivors were entitled to benefits because, although the decedent's injury was not the immediate cause of death, it was the proximate cause of death.
Here the ALJ found that the claimant sought treatment for symptoms that were, in part, directly caused by the installation of the shunt and consequent drainage of CSF fluid into the peritoneal cavity. The ALJ also found that the symptoms were also partially caused by the effects of the non-industrial appendicitis and peritoneal scarring that prevented absorption of the CSF. The ALJ concluded that the fact that there were non-industrial causes of the need for treatment did not change the fact that the effects of the industrial injury also contributed to both the occurrence of the symptoms and the consequent treatment. The ALJ further found that the development of the appendicitis and resultant scarring of the peritoneal cavity were factors in the claimant's need for treatment because they were the immediate cause of the retention of the CSF. However, the ALJ also found that the appendicitis and scarring were not the sole causative factors because if there had been no CSF drainage into the peritoneal cavity the claimant would not have experienced the headaches and distention, although he might have needed treatment at some point for the appendicitis and peritoneal scarring. We cannot say that the ALJ incorrectly applied the law in determining the cause of the need for medical treatment.
The respondents next argue that the ALJ's reliance on Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949) is misplaced. We again disagree. The ALJ concluded that even if the appendicitis and peritoneal scarring could be considered efficient intervening causes of the claimant's need for treatment, the ALJ concluded that treatment for these conditions would be considered compensable under the particular facts of the case. The ALJ found that at the time of Dr. Harwood's exploratory laparoscopy, the cause of the fluid retention was not certain, and infection of the shunt was one of the possible diagnoses. Hence, the ALJ found the surgery was performed in part to ascertain the extent of the industrial injury. The ALJ citing Merriman v. Industrial Commission, supra, found that the mere fact that a non-industrial cause of the claimant's symptoms, appendicitis, was discovered does not vitiate the causal connection between the industrial injury and the hospitalization, surgery and treatment.
Merriman involved a claimant whose doctors advised exploratory surgery for a work-related condition, and during surgery, a non-industrial condition was disclosed. In Merriman, the surgery and resulting disability were found to be causally connected to the injury and compensable. Here the ALJ with record support found that at the time of Dr. Harwood's exploratory laparoscopy, the cause of the fluid retention was not certain, and infection of the shunt was one of the possible diagnoses. Hence, the ALJ found the surgery was performed in part to ascertain the extent of the industrial injury.
We are not persuaded by the respondents' argument that because Merriman involved the issue of a pre-existing condition and not the issue of an intervening event, the present case is distinguishable. As we read Merriman the court relied on the basic principle that because a pre-existing condition found to be a contributing factor to a claimant's disability does not preclude payment of compensation. This principal is not changed by the fact that the surgical treatment here involved was needed to relieve from the pre-existing disease. The ALJ made a finding, based upon substantial evidence, that there was a causal connection between the injury, the operation, and the disability, and thus satisfied the requirements set forth in Merriman. Nor are we persuaded by the respondents' argument that even assuming that exploratory surgery was compensable it did not follow that the subsequent hospitalization and procedures were compensable as well. In Merriman, the claimant was found not only to be entitled to recover the amounts he expended for surgical and hospital treatment, but also to recover for the disability resulting from the operation. IT IS THEREFORE ORDERED that the ALJ's order dated July 13, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
DALLAS D VANDENBERG, BAILEY, CO, (Claimant).
AMES CONSTRUCTION, Attn: ROGER MCBRIDE, BURNSVILLE, MN, (Employer).
ST PAUL FIRE MARINE INSURANCE, Attn: DENISE GROVES, DENVER, CO, (Insurer).
FOGEL, KEATING, WAGNER, ET. AL. P.C., Attn: LARRY FREE, ESQ., DENVER, CO, (For Claimant).
RITSEMA LYON, P.C., Attn: ELIOT J WIENER, ESQ., DENVER, CO, (For Respondents).