W.C. No. 4-532-142, 4-532-158, 4-537-028Industrial Claim Appeals Office.
February 12, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) insofar as it awarded medical benefits for the treatment of occupational diseases. The respondents contend the ALJ did not find, nor would the evidence support the finding, that the claimant sustained a “substantial permanent aggravation” of the diseases while employed by respondent Asplundh Tree Expert Company (ATE). We affirm.
The claimant was employed by ATE in February 2000. Some of his duties involved the operation of weedeaters and vibrating tools.
The claimant’s medical history prior to February 2000 is significant. In October 1996 Dr. Jenks treated the claimant for bilateral shoulder pain. The claimant’s condition was diagnosed as impingement syndrome. The left shoulder problems were traced to a 1994 fall, but the right shoulder problems were unexplained. The claimant’s symptoms improved with conservative therapies.
In April 1998 the claimant was again treated for bilateral shoulder pain and left elbow and wrist pain. A June 1998 EMG revealed the presence of left-sided carpal tunnel syndrome (CTS). In August 1999 the claimant injured his right shoulder while pushing a motorcycle. Conservative treatment improved the claimant’s symptoms, but an x-ray revealed degenerative changes.
On January 18, 2001, and again on February 1, 2001, the claimant fell injuring his left shoulder while employed by ATE. On February 5, 2001, Dr. Jenks again diagnosed bilateral impingement syndrome and left cubital tunnel syndrome. In October 2001 Dr. Jenks diagnosed right-sided CTS, left-sided CTS, left cubital tunnel syndrome and bilateral shoulder pain of uncertain etiology. Dr. Jenks referred the claimant to Dr. Bach for a surgical consultation concerning the upper extremity neuropathies. Dr. Bach performed surgery for left CTS. The claimant also underwent examination by an unauthorized surgeon, Dr. Pak, who diagnosed bilateral rotator cuff tears. Dr. Pak surgically repaired both rotator cuffs.
The claimant underwent an independent medical examination (IME) by Dr. Rook. Dr. Rook testified that rotator cuff tears are a different diagnosis than impingement syndrome, and that the falls in early 2001 were sufficient to cause the rotator cuff tears. He further opined that the activities of the claimant’s job at ATE combined with preexisting weakness was sufficient to cause the tear of the right rotator cuff. Finally, Dr. Rook noted the claimant’s left-sided CTS symptoms worsened with the ATE job activities, and the need for surgery was necessitated by the worsened symptoms. (Rook Depo. Pp. 7, 11-13).
The ALJ found the claimant sustained compensable accidental injuries affecting his left shoulder on January 18 and February 1, 2001. The ALJ further found the claimant sustained compensable occupational diseases of bilateral rotator cuff tears, bilateral CTS, and bilateral cubital tunnel syndrome as a result of conditions of his employment at ATE. Although the ALJ recognized the claimant had preexisting shoulder problems and preexisting left-sided CTS, the ALJ found these conditions sere probably aggravated by the claimant’s employment with ATE. (Finding of Fact 18). Consequently, the ALJ ordered the respondents to pay for the reasonable and necessary medical treatment prescribed by Dr. Jenks and Dr. Bach. However, the respondents were not ordered to pay for Dr. Pak’s treatment because it was found to be unauthorized.
On review, the respondents contend the ALJ erred in ordering them to pay for treatment involving the shoulders and the left-sided CTS. According to the respondents, § 8-41-304(1), C.R.S. 2003, provides that when an “injury” involves an occupational disease, the disease is not “compensable” unless the claimant sustains a “substantial permanent aggravation” of the disease while employed by the employer. The respondents argue the ALJ did not find, nor would the evidence support a finding, that the claimant sustained “substantial permanent aggravations” of the preexisting left-sided CTS and bilateral shoulder problems. We disagree with this argument.
The respondents assertions notwithstanding, the ALJ correctly ruled that the “compensability” of occupational diseases is determined by the criteria established in § 8-40-201(14), C.R.S. 2003. In contrast, § 8-41-304(1), including the last injurious exposure and substantial permanent aggravation elements, establish a standard for apportioning liability for an occupational disease when the disease was incurred over several different employments or while a single employer was covered by multiple insurers. See Robbins Flower Shop v. Cinea, 894 P.2d 63
(Colo.App. 1995).
Moreover, the provisions of § 8-41-304(1) apply to the apportionment of liability for “compensation,” not medical benefits. Rather, the insurer “on the risk” at the time medical benefits are incurred is liable for such benefits. Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986). The term “on the risk” refers to the insurer “that provided coverage to the employer whose conditions of employment caused the need for treatment.” Thus, liability for medical benefits is placed on the employer whose employment “caused, aggravated, or accelerated” the claimant’s injury. University Park Care Center v. Industrial Claim Appeals Office, 43 P.2d 637, 640 (Colo.App. 2001).
Here, the ALJ’s order concerns only medical benefits. Hence he was not required to determine whether the claimant sustained a “substantial permanent aggravation” of his occupational diseases while employed by ATE. Rather, the ALJ was simply required to determine whether the employment at ATE caused, aggravated or accelerated the need for treatment in accordance with the ordinary rules governing causation.
Insofar as the respondents are arguing the evidence is insufficient to support the finding that the conditions of employment with ATE caused the need for treatment, we disagree. The ALJ correctly recognized that even if a disease has multiple causes, the industrial portion of the disease is compensable to the extent that it causes, intensifies or aggravates the condition for which treatment is sought. See Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993).
The question of whether the claimant has proven causation is one of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, supra. We may also consider findings necessarily implied by the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
With respect to the claimant’s bilateral rotator cuff tears, we note the claimant was never formally diagnosed with torn rotator cuffs, as opposed to impingement syndrome, until after the employment with the ATE. Further, Dr. Rook’s testimony that the duties of employment combined with the claimant’s preexisting shoulder weakness so as to result in a tear of the right rotator cuff supports the ALJ’s inference that the claimant sustained occupational diseases resulting in tears of both rotator cuffs, and that these diseases led to the need for bilateral shoulder treatments.
Similarly, Dr. Rook noted the claimant experienced increased symptoms of left-sided CTS while performing duties with ATE, and these symptoms led to the need for surgery. Based on this evidence, the ALJ logically inferred that the employment with ATE caused the need for treatment.
It is true that some evidence in the record would support contrary findings and conclusions. However, that fact does not afford any basis for appellate relief. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 2003, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on February 12, 2004 by A. Hurtado.
David Bennett, 2310 W. Monument, Colorado Springs, CO 80904
Asplundh Tree Expert Company, 708 Blair Mill Rd., Willow Grove, PA 19090-1784
Lumbermens Mutual Casualty Company, c/o Crawford and Company, P. O. Box 6502, Englewood, CO 80155-6502
Pattie J. Ragland, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)