Opinion
W.C. Nos. 4-358-101 4-401-959
December 4, 2002
FINAL ORDER
Respondents Richtman Printing Companies (Richtman) and Fireman's Fund Insurance Company (Fireman's Fund) seek review of a final order of Administrative Law Judge Friend (ALJ) holding Fireman's Fund liable for the claimant's right upper extremity injury. Fireman's Fund argues the evidence compelled the ALJ to find the right upper extremity injury was a natural and proximate result of prior industrial injury to the claimant's left upper extremity for which respondent Hartford Fire Insurance Company (Hartford) is liable. We affirm.
The facts of this case are set out in our prior order of April 25, 2002. That statement of the facts is adopted herein.
On remand, the ALJ found that the claimant was placed at maximum medical improvement for the left upper extremity injury in July 1998. After the claimant returned to work for Richtman, he "overcompensated for the injury to his left upper extremity and overused his right upper extremity." Based on these findings, and in accordance with the views expressed in our prior order, the ALJ found the right upper extremity was a "new" injury and held Fireman's Fund liable for medical benefits necessary to treat the condition.
On appeal, Fireman's Fund contends the right upper extremity injury was a natural and proximate result of the left upper extremity injury. Therefore, Fireman's Fund argues Hartford is liable for benefits to compensate the right upper extremity injury.
For the reasons set forth in our prior order, we disagree with Fireman's Fund. In our view, the claimant's return to employment at Richtman, and the duties performed thereafter, were an efficient intervening cause of the injury to the right upper extremity. The right upper extremity injury was not a natural and proximate result of the left upper extremity injury because the left upper extremity played no direct causative role in the development of the right upper extremity injury, such as occurred in Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (Colo. 1970). Cf. Marin v. Compass Logistics, Inc., W.C. No. 4-520-473 (November 7, 2002) (evidence supported finding left shoulder injury was natural and proximate result of right shoulder injury where pushing cart caused claimant to experience right shoulder pain and stress the left shoulder in response).
Rather, in our view, this case falls in the class of cases where an employer takes the claimant as it finds him and is liable for compensation benefits if the circumstances of employment aggravate or accelerate a preexisting condition. Here, the circumstances of the employment "aggravated" the claimant's preexisting weakness so as to cause an entirely new disability involving a different part of the claimant's body. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Manzanares v. ABC Rail Corp., W.C. No. 4-237-762 (May 23, 2002), on which Fireman's Fund places reliance, is not authority to the contrary. Manzanares concerns the question of whether quasi-course of employment injuries are "new" injuries or compensable consequences of the underlying industrial injury. The case does not purport to determine under what circumstances a claimant sustains a "new" injury if he returns to work. Indeed, Manzanares distinguished Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994), in a manner which supports the result reached here. The Manzanares panel stated the following:
In Citadel Mall v. Industrial Claim Appeals Office, supra, the court reversed our conclusion that injuries sustained during an on-the-job training program designed to rehabilitate the claimant from the effects of a prior industrial injury are compensable components of the original industrial injury and not a second, and separate injury for purposes of imposing Subsequent Injury Fund Liability. The Citadel Mall court held that because the later injury occurred during a second and subsequent employment relationship, the second injury is not compensable in the first injury claim. Citadel Mall reflects the court's conclusion that where the claimant's injuries are the result of a separate, new employment relationship the injuries constitute a separate workers' compensation claim.
The reasoning of our prior order is adopted herein as if fully set forth.
IT IS THEREFORE ORDERED that the ALJ's order dated June 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 4, 2002 to the following parties:
Robert E. Williams, Jr., 1688 S. Patton Ct., Denver, CO 80219
Richtman Printing Companies, c/o Communigraphics, GAC, Director, Risk Mgmt. Services, Mail-Well Envelope, 8310 S. Valley Highway, #400, Englewood, CO 80112-5806
Fireman's Fund Insurance Company, c/o Cunningham Lindsey Claims Management, 3033 N. 44th St., #250, Phoenix, AZ 85018
Hartford Fire Insurance Company, 7670 S. Chester St., Englewood, CO 80112
Carey Anderson, Lockton Companies, 4500 Cherry Creek South Dr., Denver, CO 80246
Cunningham Lindsey Claims Management, 3033 N. 44th St., #250, Phoenix, AZ 85018
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Michael A. Perales, Esq., and Kyle L. Thacker, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Richtman Printing Companies and Fireman's Fund Insurance Co.)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents Richtman Printing Companies and Hartford Fire Insurance Co.)
By: A. Hurtado