IN THE MATTER OF THE CLAIM OF MICHAEL PATTON, Claimant, v. K C RV CAMPING WORLD, Employer, and PINNACOL ASSURANCE and/or ARCH INSURANCE, Insurer, Respondents.

W.C. Nos. 4-615-226 4-788-086.Industrial Claim Appeals Office.
July 5, 2011.

ORDER
The respondents K C RV Camping and Arch Insurance (respondents) seek review of an order of Administrative Law Judge Harr (ALJ) dated February 14, 2011 that found them responsible for the claimant’s disability and medical benefits. We affirm in part, set aside the order in part, and modify the award of medical benefits.

The ALJ previously entered a final order regarding the claimant’s entitlement to benefits. We set aside the order and remanded the matter to the ALJ to determine whether the claimant sustained an intervening injury. Several of the ALJ’s findings of fact on remand are summarized as follows. The claimant worked as an RV technician and his job required him to twist, bend, use power tools, and lift and carry up to 100 pounds in awkward positions. Prior to working as a technician, the claimant drove a truck and injured his low back in 1986 while working as a truck driver. He experienced radicular symptoms in his legs because of his 1986 injury. The claimant sustained a work-related injury to his low back with the respondent employer on May 14, 2004. He had pain that went into his leg, but he denied numbness or weakness in his extremities. The claimant returned to work at his regular job.

The claimant did not seek medical treatment between May 25, 2004 and September 2, 2008. However, the claimant’s back condition worsened in 2007. By September 2008 the claimant could no longer stand the pain. Since September 14, 2008 the claimant has been unable to return to his regular work at the employer. A private

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health insurance carrier covered most of the claimant’s lower back treatment in 2008, but later told the claimant it would no longer provide coverage because it was believed that the lower back condition was work-related. The claimant explained that to the employer’s human resource person and reported that he needed to file a workers’ compensation claim. The claimant filed a claim against respondent Arch Insurance and a petition to reopen his earlier claim against respondent Pinnacol Assurance. The claimant had a reasonable basis for his previous failure to report his occupational disease to the employer.

Dr. Hattem and Dr. Hughes provided credible opinions that the claimant’s lower back symptoms from 2007 forward were not causally related to the claimant’s 2004 injury, but were due to his work activity in 2007 and 2008 and was in the nature of an occupational disease. Dr. Hughes disagreed with Dr. Pitzer’s opinion concerning an intervening motorcycle injury as the cause of the claimant’s foot drop symptoms. Dr. Pitzer’s opinion that the claimant sustained an intervening injury from riding his motorcycle is speculative. The ALJ therefore held respondent Arch Insurance liable for temporary total disability benefits, as well as for medical benefits. In light of the ALJ’s determination that the claimant sustained a new injury in the nature of an occupational disease, he denied the claimant’s petition to reopen the claim for his 2004 injury for which Pinnacol Assurance was the insurer.

I.
Respondents challenge the ALJ’s determination that the claimant sustained an occupational disease regarding his lumbar spine. According to the respondents, the ALJ erred by relying on the opinions of Dr. Hattem and Dr. Hughes because they assumed both that the claimant’s symptoms completely resolved after his 1986 and 2004 injuries, and that the claimant was able to return to regular duties after those prior injuries. The respondents also rely on other evidence in support of their contention that the claimant did not suffer an occupational disease. We are not persuaded to disturb the ALJ’s determination.

A claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. The claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant’s employment or working conditions Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999).

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Because the issue of causation is factual in nature, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. This standard of review requires deference 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 Claims Office, supra. In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

Contrary to the respondents’ assertions, the ALJ credited the opinions of Dr. Hattem and Dr. Hughes largely because there was an absence of medical treatment between May 2004 and September 2008. In addition, the ALJ recognized the claimant’s long history of ongoing and chronic lower back pain from 1986 forward. The ALJ specifically referred to Dr. Hattem’s testimony that the claimant was not treated for at least two years following his 2004 injury and that the claimant returned to heavy work after the injury. Hattem Depo. at 11-13, 15-16. The ALJ also credited Dr. Hughes’ opinion that the claimant had a “fairly complete recovery subsequent to the 2004 work-related injury” as suggested by the lack of medical documentation after May 24, 2004. Hughes Depo. at 15. The ALJ made the following findings: the claimant’s occupational disease is characterized by progressively worsening symptoms during 2007 and 2008; the claimant’s 2004 injury has not worsened; the claimant’s current symptoms are not causally related to his 2004 injury; the claimant’s need for medical treatment and surgery in 2008 were not casually related to his 2004 injury; and the claimant’s work activity in 2007 and 2008 more probably caused his need for medical treatment than not. Findings of Fact, Conclusions of Law, and Order upon Remand at 7, ¶ 27. Hattem Depo. at 12, 18-20. The ALJ’s findings regarding the claimant’s occupational disease are supported by substantial evidence and binding on review.

The respondents further assert that the ALJ erred by determining that the respondents failed to establish an intervening injury in 2009 that caused the claimant’s need for medical treatment. Once the claimant establishes a causal connection between the employment and his disability, the burden shifts to the respondent to prove a non-work related cause of the disease. Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo. App. 1984). The ALJ was not persuaded by the respondents’ assertion that the claimant sustained an intervening injury while riding his motorcycle. The claimant developed foot drop symptoms and Dr. Pitzer noted that the onset of those symptoms coincided with the claimant’s activity. However, Dr. Hughes opined that the claimant’s foot drop was not caused by riding his motorcycle, but preceded that incident. Hughes Depo. at 13-14. Hughes discussed another doctor’s statement that there was no antecedent trauma or activity identified as a precipitating factor, and that the doctor was documenting findings consistent with a progression. Hughes Depo. at 11. Dr. Hughes

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explained that a non-contrast MRI of the affected area was insufficient to help explain the medical reason for the claimant’s foot drop symptoms. Hughes Depo. at 11. The ALJ credited these opinions.

The respondents revisit portions of the evidence in support of their contention that the ALJ should have inferred the claimant sustained an intervening injury; however, we have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000) Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). We have reviewed the respondents’ additional arguments on the issue of an intervening injury and they do not alter our conclusions.

The respondents also argue that any wage loss was not caused by the claimant’s occupational disease as found by the ALJ because the claimant’s back condition predates his employment with them. Pursuant to §§ 8-42-103 and 8-42-105, C.R.S., a claimant is entitled to an award of temporary total disability benefits if: (1) the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; and (3) the temporary disability is total and lasts more than three regular working days. Lymburn v. Symbios Logic 952 P.2d 831 (Colo. App. 1997). The ALJ found that the claimant has been unable to return to his regular work since September 14, 2008 and that the claimant sustained an occupational disease during 2007 and 2008. The award of temporary total disability benefits is therefore warranted under the circumstances.

II.
The respondents argue that the ALJ erred by determining that the claimant had either timely reported his occupational disease to the employer or had a reasonable basis for any failure to do so. The ALJ found that the claimant was not aware of the “legal theory of an occupational disease and failed to understand that he could report his lower back condition as work-related.” The ALJ also found that the claimant reported his back condition to the employer after his private health insurance carrier advised him it would no longer cover his medical expenses on the ground that the claimant’s lower back condition was work-related. Findings of Fact, Conclusions of Law, and Order upon Remand at 5, ¶¶ 18-20.

We note that the respondents do not appear to have discussed the issue of penalties either at the hearing or in their position statement; however, the penalty issue was identified prior to hearing in their case information sheet and added as an issue by order of a prehearing administrative law judge. We therefore address the respondents’ arguments regarding the denial of penalties.

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It appears from the record that the respondents sought penalties pursuant to § 8-43-102(2), C.R.S. on the ground that the claimant failed to timely report an occupational disease. That subsection requires written notice “within thirty days after the first distinct manifestation thereof” We have previously held that the determination of the “first distinct manifestation” is subject to the general principle that the time for providing notice of an injury does not begin to run until the claimant, as a reasonable person recognizes the nature, seriousness, and probable compensable nature of the injury. See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Guthrie v. Carpet Mills Outlet Stores, W.C. No. 4-210-005 (September 25, 1995) Row v. Shepard’s McGraw-Hill Inc., W.C. No. 4-180-762 (July 31, 1995).

However, to recognize the “probable compensable character” of an injury or occupational disease, the claimant need only appreciate that the disease is somewhat disabling and that there is a causal relationship between the employment and the condition. See
7 Larson’s Workers’ Compensation Law, § 126-05[6]; cf City of Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo. App. 2004) (claimant who knows probable compensable nature of injury not required to file claim until injury becomes disabling); City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo. App. 1998); Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo. App. 1987).

Here, the ALJ found that the claimant timely reported the occupational disease, because it gradually appeared and progressed in contrast to his prior accidental injury, and the claimant was unaware of the legal theory of an occupational disease and failed to understand that he could report his condition as work-related. Further, the ALJ concluded that, even if the claimant had failed timely to report the occupational disease, a penalty should not be imposed because the claimant’s unawareness of his right to pursue a claim and failure to understand that he had a compensable injury was a reasonable basis for failing timely to report the injury. Although imposition of the penalty remains discretionary, we conclude the ALJ applied an incorrect legal standard in resolving this issue.

The claimant’s ignorance of the law, including the right to file a claim does not excuse a claimant’s late action. See
7 Larson’s Workers’ Compensation Law, § 126.09[3]. Claimants are presumed to know the law. See Paul v. Industrial Commission, 632 P.2d 638 (Colo. App. 1981). The obligation to report an injury or occupational disease is triggered when the claimant knows or reasonably should have known the facts giving rise to a claim.

Here, the ALJ did not find when the claimant knew or reasonably should have known the nature, seriousness, and probable compensable character of the disease, as

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defined above. Consequently, the case shall be remanded for resolution of that issue and a new determination of whether a penalty is appropriate.

III.
The respondents challenge the ALJ’s determination that they are responsible for medical treatment by several providers from September 3, 2008 forward. The ALJ made findings about the claimant being treated from September 3, 2008 onward by several medical providers, one of whom had been an authorized treating physician for the claimant’s previous industrial injury in 2004. The ALJ concluded that the respondents should pay for treatment by the several medical providers from September 3, 2008 ongoing. However, the respondents note that the claimant did not report a work injury in the nature of an occupational disease until March 17, 2009, a date that the respondents assert is undisputed. Exhibit II (Employer’s First Report of Injury indicating employer notified of injury on “03/17/2009”). In this regard, no other party has argued otherwise on appeal, and the claimant’s position statement indicates that the employer was first advised about the occupational disease claim on March 17, 2009. The respondents argue that they could not become liable for medical benefits until they had notice of the injury. We agree and, therefore, adjust the time period for when the respondents became liable for medical benefits.

Except in case of emergency the respondents are generally liable for medical treatment provided by a provider legally authorized to treat the claimant and they are obligated to designate a treating physician upon notice of the claimant’s injury See § 8-43-404(5)(a), C.R.S. (giving respondents first right in first instance to select claimant’s physician); Bunch v. Industrial Claim Appeals Office, 148 P.3d 381, 383-84 (Colo. App. 2006) (reviewing employers’ and insurers’ obligations to provide medical treatment and right of selection of physician). Here, the ALJ found that the claim for the claimant’s 2004 injury closed after the claimant failed to object to the corresponding final admission of liability filed by Pinnacol Assurance. The ALJ found that the claimant next sought medical treatment in September 2008 and subsequently notified the employer about his back condition only after his private health insurance carrier stopped covering his treatment. Thus, the claimant’s entitlement to regular treatment from an authorized treating physician depended on the claimant notifying the employer of either the need for additional treatment or a new injury. See Id.
(pre-claim medical benefits in occupational disease claim precluded by employer’s statutory right to select treating physician in first instance); see also Gonzales v. Crowley County Nursing Center, W.C. No. 4-250-651 (November 27, 2000) (after claim closed and claimant seeks reopening based on worsened condition claimant obligated to notify respondent of need for additional treatment prior to obtaining physician’s services); Tellez v. Teledyne Water Pik, W.C. No. 3-990-062 (March 24, 1992) affd, (Colo. App. No. 92CA0643, Dec. 24, 1992) (not

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selected for official publication) (medical treatment not compensable prior to claimant notifying employer or insurer of occupational disease). We therefore modify the award of medical benefits to require the respondent insurer to pay for the specific medical providers identified in the ALJ’s decision from March 17, 2009 forward.

IT IS THEREFORE ORDERED that the ALJ’s order dated February 14, 2011 is modified to require the respondent insurer Arch Insurance to pay for the medical treatment specified in the order from March 17, 2009 forward.

IT IS FURTHER ORDERED that the order is set aside insofar as it denied the claim for a penalty and is remanded for a new determination of that issue consistent with this order.

IT IS FURTHER ORDERED that the order otherwise is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Dona Rhodes

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MICHAEL PATTON, 1912 286TH STREET EAST, ROY, WA, 98580 (Claimant).

K C RV CAMPING WORLD, LONGMONT, CO, (Employer).

ARCH INSURANCE, Attn: MS. SUZI LIMPPO, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).

THE FRICKEY LAW FIRM, Attn: JANET L. FRICKEY, ESQ., LAKEWOOD, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, 80111 (For Respondents).

PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ./LISARAE JUNGLING, ESQ., DENVER, CO, (Other Party).

RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: VITO A. RACANELLI, ESQ., DENVER, CO, (Other Party 2).

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