Opinion
W.C. No. 4-394-741
January 13, 2000
ORDER OF REMAND
The claimant seeks review of an order of former Administrative Law Judge Gandy (ALJ) which determined the claimant failed to prove a compensable shoulder injury. We set aside the order and remand the matter for additional findings and the entry of a new order.
On June 15, 1998, the claimant suffered an admitted low back injury which required surgery. Prior to surgery, the claimant attended physical therapy where he performed non-weight bearing exercises to stretch the lumbar spine. The claimant testified that while performing the exercises he heard a crunching and popping sound in his right shoulder and began to experience right shoulder pain. An anthrogram revealed a large right rotator cuff tear with degenerative changes and the presence of a subacromial spur. In February 1999, the claimant underwent right shoulder surgery, and subsequently missed time from work.
Crediting the testimony of Dr. Lynch, the ALJ determined the claimant failed to prove that the rotator cuff tear was caused by the physical therapy. Therefore, the ALJ determined the claimant failed to prove that the shoulder surgery and resulting wage loss are compensable consequences of the back injury.
On review, the claimant contends, inter alia, that even if the rotator cuff tear predated the physical therapy, the tear was aggravated by the physical therapy and the aggravation caused the need for surgery. Relying on H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990), the claimant argues that a compensable injury may be the result of an industrial aggravation of a pre-existing condition. Therefore, the claimant contends the ALJ erred in finding that the shoulder surgery and resulting temporary disability are not compensable consequences of this claim. We conclude that the ALJ's findings of fact are insufficient to permit appellate review of this issue, and therefore, we remand the matter for additional findings. Section 8-43-301(8), C.R.S. 1999.
It is undisputed that injuries sustained during treatment of an industrial injury are compensable under the "quasi-course of employment" doctrine. Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993); Hembry v. Farmers Implement Company, Inc., W.C. No. 4-106-004 (October 5, 1993). The "quasi-course of employment" doctrine applies to post-injury activities undertaken by the employee which, although they take place outside the time and space limits of the employment and would not usually be considered employment activities, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. Excel v. Industrial Claim Appeals Office, supra; Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985).
Furthermore, a compensable injury may result from the industrial aggravation of a pre-existing, non-occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). The claimant is not required to prove that the industrial aggravation was either "substantial" or "permanent." The statutory requirement for proof of a "substantial permanent aggravation" only applies when there is an occupational disease in the first instance that is aggravated by subsequent employment. Section 8-41-304(1), C.R.S. 1999; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Rather, the claimant has a compensable injury if the employment-related activities aggravate, accelerate, or combine with the pre-existing condition to cause a need for medical treatment or produce the disability for which benefits are sought. Section 8-41-301(1)(c), C.R.S. 1999; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). An industrial aggravation is the "proximate" cause of a claimant's disability if it is the "necessary precondition or trigger" of the need for medical treatment. Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
Pain is a typical symptom from the aggravation of a pre-existing condition. The claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment-related activities and not the underlying pre-existing condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
Here, the ALJ found that the rotator cuff tear was not caused by the physical therapy. However, the ALJ made no specific findings concerning whether the physical therapy aggravated the tear. Neither did the ALJ determine whether such an aggravation was the proximate cause of the claimant's subsequent need for treatment, and the respondents' arguments to the contrary are not persuasive. Under these circumstances, we are unable to ascertain whether the ALJ considered and resolved the issue of whether the shoulder surgery was necessitated by a compensable aggravation of his pre-existing shoulder condition.
The record contains evidence which, if credited, could support the claimant's assertion that the physical therapy caused his need for shoulder surgery. The claimant testified that he had no right shoulder pain and no right shoulder treatment prior to engaging in physical therapy for the low back injury. (Tr. pp. 8, 14). He also denied any shoulder problems performing his work or recreational activities prior to the physical therapy. (Tr. pp. 14). However, he eventually reported difficulty performing overhead activities at work, and thereafter, proceeded with shoulder surgery. (Dr. Lynch January 11, 1999). The sufficiency and probative weight of this evidence are matters for an ALJ, who is the trier of fact. Consequently, we must remand the matter to an ALJ for additional findings resolving this issue.
On remand the ALJ who reviews this matter must determine whether the claimant's rotator cuff tear was aggravated by the physical therapy exercises and if so, whether the aggravation was the proximate cause of the claimant's subsequent need for shoulder surgery. Based upon these determinations the ALJ shall enter a new order concerning the claimant's request for temporary disability and medical benefits in connection with the right shoulder injury.
In remanding the matter we should not be understood as expressing any opinion concerning the claimant's entitlement to benefits. We merely conclude that additional findings of fact are required.
In view of this disposition, it is premature to consider the claimant's further arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated July 9, 1999, is set aside and the matter is remanded to the Division of Administrative Hearings for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre
Copies of this decision were mailed January 13, 2000 to the following parties:
Marlin S. Webeck, 1802 27th St., Greeley, CO 80631
King-Chamberlain Auto Group, Inc., 508 8th Ave., Greeley, CO 80631-3914
Hartford Casualty Insurance Co., Attn: Sandra Maez, P.O. Box 5188, Denver, CO 80217-9819
J. J. Fraser, III, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
Kristi J. Coffin, Esq., 1319 8th St., Greeley, CO 80631
BY: A. Pendroy