W.C. Nos. 4-642-468, 4-642-607.Industrial Claim Appeals Office.
April 5, 2006.
FINAL ORDER
The Aerotek respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated October 17, 2005 that ordered them to pay temporary total disability benefits and medical benefits. We dismiss the petition to review insofar as it seeks review of the order to pay medical benefits and we otherwise affirm.
The claimant sought a hearing on the issues of compensability, medical benefits, temporary total disability benefits, average weekly wage, and penalties. Following the hearing the ALJ entered factual findings that may be summarized as follows. On January 17, 2005 the claimant accepted employment with Aerotek, a temporary employment agency, which assigned him to deliver products for Coors Distributing Company (Coors). On January 27, 2005 he sustained a compensable injury to his low back, which occurred while he was lifting a keg of beer. He reported the injury to Keith Johnson, a supervisor employed by Coors. On January 31, 2005, he accepted employment with Coors and, additionally, during January and February 2005 he maintained concurrent employment driving a shuttle van for Colorado Mountain Express (CME), transporting passengers to and from the airport. On February 11, 2005 the claimant was working for Coors and felt additional pain and symptoms when lifting a keg of beer. On February 12, 2005 the claimant experienced considerable back pain, and during his employment with CME that day he requested that passengers handle their own luggage. He sought medical treatment at the emergency room and was diagnosed with acute lumbar strain with left sciatica, and medications were prescribed. Physical restrictions were imposed, both by the physician who attended him in the emergency room and by Larry George, M.D., to whom he was referred. CME could not accommodate the claimant’s physical restrictions; however, on March 31, 2005 Dr. George released the claimant to return to modified work at Coors. He attempted to do so on April 6, 2005, but believed the job duties assigned exceeded his restrictions. He did not appear for work after April 6, nor did he respond to several telephone calls from Coors inquiring about his intentions concerning his job. The claimant’s employment was terminated and the ALJ concluded that the claimant was responsible for the wage loss after April 7, 2005.
Based upon her findings the ALJ concluded that the claimant sustained a compensable low back injury on January 27, 2005, but that the incident occurring on February 11, 2005 was not a separate compensable injury. The ALJ ordered Aerotek and its insurer to pay temporary disability benefits and medical benefits pursuant to the Act.
On appeal the respondents argue that the ALJ abused her discretion in failing to find that the claimant injured his back on February 11, 2005, and that, in any event, she erred in ordering them to pay benefits prior to the date the claimant reported the injury to Aerotek.
I.
We disagree with the Aerotek respondents’ argument that the record compels the conclusion that the claimant sustained a compensable injury on February 11th. The law in this regard is well established. A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. § 8-41-301(1)(c), C.R.S. 2005. The existence of a pre-existing medical condition does not preclude the claimant from suffering a new compensable injury, if an industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169
(Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
It is also true that pain is a typical symptom from the aggravation of a pre-existing condition. And 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). In contrast, the claimant suffers a “worsening” of a pre-existing condition if the change is the natural and proximate consequence of a prior industrial injury, without any contribution from a separate, intervening causative factor. See Larson’s Workers’ Compensation Law, § 131.03(1)(b) (2001).
The issue of whether the claimant’s condition is the natural and proximate progression of the original industrial injury or a new injury is one of fact for resolution by the ALJ based upon the evidentiary record. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The ALJ’s findings must be upheld if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Where the evidence is subject to conflicting inferences it is the ALJ’s sole prerogative to determine the inferences to be drawn. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998); Gelco Courier v. Industrial Commission, 702 P.2d 295
(Colo.App. 1985).
Contrary to the respondents’ arguments, the ALJ’s findings are supported by substantial evidence in the record, and those findings support the conclusion that the claimant did not suffer a separate compensable injury on February 11th. The ALJ found that the claimant sustained an injury to his back on January 27, 2005, and that after that injury he suffered significant pain and other symptoms, and experienced problems with numerous activities, including lifting, bending and sleeping. Although the pain increased after the February 11th incident, as we read the ALJ’s order she did not find that it was anything but a worsening of the type of pain and other symptoms that the claimant had been experiencing continuously as a result of the January 27th injury. These findings are supported by the claimant’s testimony regarding the back pain and other symptoms produced by the January 27th injury. Moreover, the inference that the injury of February 11th was merely the natural progression of that earlier injury is a reasonable one from the record. Nothing in the evidence compels the conclusion that the claimant sustained a separate compensable injury on February 11th and we may not disturb the ALJ’s conclusion to the contrary.
II.
The respondents also contend that the ALJ erroneously awarded medical benefits during the period prior to the date the Aerotek respondents received notice of the claim. We conclude this portion of the ALJ’s order is not currently subject to review.
Employers are liable for emergency and authorized medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. § 8-42-101(1), C.R.S. 2005 Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). “Authorization” refers to the physician’s legal authority to treat, and is distinct from whether treatment is “reasonable and necessary” within the meaning of §8-42-101(1)(a). Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied “with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review.” Orders which do not either award or deny benefits or penalties are not final and reviewable Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Accordingly, we have previously held that an award of medical benefits is not final and reviewable unless the record demonstrates that liability for specific medical treatment was at issue. E.g. Rosas v. DDC Interiors, Inc., W.C. No. 4-364-828
(August 18, 1999); Tilton v. ABC Turf Care, W.C. No. 3-105-542
(August 18, 1994). The rationale for these decisions is that employers maintain the right to contest the reasonableness and necessity for particular medical benefits. Snyder v. Industrial Claim Appeals Office, supra. We adhere to our prior conclusions. Thus, a finding that treatment is “authorized” is not itself a “medical benefit.” One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
Here, the ALJ held the respondent liable for the “reasonably necessary and related medical treatment” rendered to the claimant for the industrial injury. The ALJ also concluded that because the respondents did not designate a provider the claimant was free to select a physician in the first instance. However, the ALJ did not determine that any particular physician or other provider was “authorized.” It is true that the claimant put on evidence of particular medical treatment that was provided and for which there were either outstanding bills or for which the claimant had paid himself. See Tr. (8/11/2005) at 37-39. However, the ALJ’s order does not specify that any particular provider was authorized or that any of the particular bills were the liability of Aerotek. Under these circumstances, the award of medical benefits is interlocutory and not currently subject to review. Director of Division of Labor v. Smith, 725 P.2d 1161
(Colo.App. 1986).
IT IS THEREFORE ORDERED that the petition to review the ALJ’s order dated October 17, 2005, is dismissed without prejudice only as to the issue of medical benefits and the order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Thomas Cox, Frisco, CO, Allegis/Aerotek, Denver, CO, Melanie Moore, Adolph Coors/Coors Distributing Company, Human Resources Dept., St., Denver, CO, Amy Kinsey, Specialty Risk Services, Denver, CO, Zurich American Insurance Company, c/o Trudi Spratta, Coors Brewing Co/Broadspire, Golden, CO, Amy L. Brewer, Esq., Breckenridge, CO, (For Claimant).
James B. Fairbanks, Esq., Denver, CO, (For Respondents Allegis/Aerotek and Specialty Risk Services).
Pamela L. Musgrave, Esq., Denver, CO, (For Respondents Adolph Coors/Coors Distributing Company and Zurich American Insurance Company).