W.C. Nos. 4-397-873, 4-397-874Industrial Claim Appeals Office.
October 19, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Schulman (ALJ) which determined the claimant sustained a compensable injury and awarded medical benefits. We affirm.
For 12 years the claimant worked as a receiving clerk for Wal-Mart Stores, Inc. (Wal- Mart). Her job duties required substantial standing and walking. In May 1998 the claimant began to experience bilateral knee and foot pain. The claimant sought treatment from her personal physician, Dr. Cary, in August 1998, and was diagnosed with plantar fasciitis. The claimant subsequently requested a referral from the respondents. The respondents referred the claimant to the Greeley Medical Clinic where she was examined by Dr. Major, Dr. Kliner and Dr. Lynch. Dr. Lynch opined the claimant’s lower extremity problems were not work- related and instructed the claimant to pursue treatment through her personal health insurance. The claimant subsequently returned to Dr. Cary for treatment.
The ALJ found the claimant has excessive weight, a genetic predisposition for plantar fasciitis, and prior knee problems. However, the ALJ found the claimant had no limitations from her previous knee surgeries until May 1998. Crediting the testimony of Dr. Hughes, and rejecting the contrary opinions of Dr. Lynch, the ALJ also found the claimant’s preexisting pen planus condition and weight problem were medically insufficient to cause the plantar fasciitis and knee problems in the absence of the walking and standing required of her employment. Consequently, the ALJ found the claimant’s work-activities were a necessary precondition to the development of the plantar fasciitis. Furthermore, the ALJ found there was “no evidence” of any exposure outside of work to prolonged standing and walking. Consequently, the ALJ determined the claimant sustained her burden to prove she suffered a compensable occupational disease affecting her knees and feet.
The ALJ’s order required the respondent to pay for the medical treatment by Dr. Major, Dr, Kliner, Dr. Lynch and Dr. Cary. In support, the ALJ found that when Dr. Lynch refused to provide further treatment, the right to select the treating physician passed to the claimant, who then selected Dr. Cary.
I.
On review the respondents contend the ALJ’s finding of a compensable injury is not supported by the record, or the applicable law. Further, they argue the ALJ failed to make sufficient findings of fact concerning whether the claimant’s condition was caused by non- occupational activities. We disagree.
A compensable injury may result from the aggravation of a pre-existing non- occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Where the aggravation is the result of a prolonged exposure occasioned by the nature of the employment and not a traumatic event, the new injury is an “occupational disease.” See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Determination of whether the claimant’s pain is the result of a new injury or the pre- existing condition is one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2000. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Under this standard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and plausible inferences drawn from the record. Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents arguments notwithstanding, there is substantial evidence in the testimony of the claimant and Dr. Hughes to support the ALJ’s finding of a causal connection between the claimant’s lower extremity problems and the employment. (Tr. pp. 17-19, 21, 23, 25, 43). The ALJ’s finding is buttressed by Dr. Major’s clinic note dated October 16, 1998. Furthermore, we may not reweigh the evidence on review and decline the respondents’ invitation to do so. See Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Therefore, we may not disturb the ALJ’s finding of a compensable injury.
Next, we reject the respondents’ contention the ALJ misapplied the burden of proof by requiring them to prove a non-occupational cause of the injury. It is well established that once the claimant presents prima facie evidence of a disease caused by employment-related hazards, the burden shifts to the respondents to prove the contribution of non-occupational factors Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992); Masdin v. Gardner- Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
The claimant testified her job required standing and walking 8 hours a day. Similarly, the respondents’ witness, Jonnie Schommer, admitted the claimant spent the majority of her work day walking and standing. (Tr. p. 90).
As argued by the respondents, Dr. Hughes admitted the claimant’s condition could be aggravated by walking and standing off work. However, we agree with the ALJ’s finding that the respondents presented “no evidence,” the claimant suffered an injurious exposure to standing and walking outside of her employment. Consequently, the ALJ did not err in finding the respondents failed to sustain their burden to present grounds for apportioning liability of the claimant’s injury.
II.
The respondents also contend the ALJ’s findings of fact are insufficient to permit appellate review because the ALJ failed to determine the date of the claimant’s “onset of disability.” The respondents argue the ALJ erred insofar as she found the claimant experienced the onset in May 1998.
Generally, a claimant does not sustain a compensable occupational disease until the “onset of disability.” The “onset of disability” occurs when the industrial injury physically incapacitates the claimant so that she cannot perform her work with the usual efficiency. See Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Incapacity may be evidenced by lost time from work, reduced efficiency in the performance of regular duties, or medical restrictions affecting the claimant’s ability to perform his regular duties. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986).
The ALJ found the claimant suffered injuries “beginning in May 1998.” (Finding of Fact 10; Discussion and Conclusions of Law, Order paragraph 1). However, the ALJ did not expressly determine the date of the onset of disability. Furthermore, we are unable to locate any evidence in the record that the claimant suffered the onset of disability prior to October 1998. Nevertheless, in Wal-Mart Stores, Inc., v. Industrial Claims Appeals Office, supra, the court held that a claimant has sustained a compensable occupational disease and may be awarded medical benefits regardless of whether the claimant also sustained an “onset of disability.”
The order on review only awards medical benefits. Under these circumstances, the ALJ’s failure to determine the onset of disability date is irrelevant and shall be disregarded. Section 8-43-310 C.R.S. 2000; see A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
III.
The respondents also contend the ALJ erroneously held them responsible for medical treatment by Dr. Cary. Again, we disagree.
The respondents are only liable for authorized or emergency medical treatment. See § 8-42-101(1), C.R.S. 2000; Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973). Section 8-43-404(5), C.R.S. 2000, affords the respondents the right, in the first instance, to select a physician to treat the industrial injury. Once the respondents have exercised their right to select the treating physician the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570
(Colo.App. 1996); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). If the designated physician refuses to treat for non-medical reasons, and the respondents do not designate a new provider, the right of selection passes to the claimant. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik,
W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication).
Whether the designated physician has refused to treat the claimant for non-medical reasons and whether the respondents have tendered the services of another physician are questions of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. Consequently, we are bound by the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8).
The ALJ found that following his October 21 examination, Dr. Lynch determined the claimant’s lower extremity problems were non-occupational, and therefore, Dr. Lynch refused to provide further treatment. Contrary to the respondents’ arguments, the ALJ’s findings reflect a plausible interpretation of Dr. Lynch’s clinic note dated October 21, 1998. In that note, Dr. Lynch stated he explained to the claimant her knee and foot problems were “multifactorial with genetics, body weight, past injuries and nonwork-related activities.” He also reported that he recommended the claimant “pursue it through her personal health provider.” Consequently, under the “Plan” section of his report, Dr. Lynch stated that the patient is to pursue further treatment “through her personal health insurance.” Dr. Lynch’s October 21, “Physician’s Supplemental Report,” stated that the claimant’s condition was “not work related” and did not instruct the claimant to return for “further medical care.” Further, Dr. Lynch did not complete the portion of the Report concerning the “treatment plan,” and “whether permanent impairment is anticipated.” Moreover, the ALJ’s determination is consistent with the claimant’s testimony that in view of Dr. Lynch’s comments, she did not feel she was welcome to schedule any further appointments with him (Tr. p. 58).
However, the respondents contend that even if Dr. Lynch refused to provide further treatment, they were entitled to a reasonable period of time to designate a new provider. They contend that in the absence of evidence they knew of Dr. Lynch’s refusal to treat, they were deprived of the opportunity to select a new provider. Again we disagree.
The claimant testified that when she returned to work after her appointment with Dr. Lynch, she gave a copy of Dr. Lynch’s report to the personnel director at Wal-Mart. (Tr. p. 73). In view of this evidence, the ALJ implicitly inferred the respondents had timely notice of Dr. Lynch’s refusal to treat.
Finally, the respondents argue that the Greeley Medical Clinic was the authorized provider and, therefore, even if Dr. Lynch refused to treat the claimant, the claimant could continue to treat with Dr. Major and Dr. Kliner. We are not persuaded.
The record contains some evidence the claimant could have continued to treat with Dr. Major and Dr. Kliner. However, the record does not compel that inference. Dr. Major’s clinic note dated October 16, 1998, contains evidence he instructed the claimant to return to the corporate health and medical program (CHAMPS) at the Greeley Medical Clinic for further medical care in a week to ten days. The claimant was next seen by Dr. Kliner on October 19, 1998. The Physician’s Initial Report from that appointment contains evidence the claimant’s next appointment was scheduled for October 21, 1998. Under these circumstances, it is reasonable to infer that Dr. Lynch spoke for all of the authorized physicians when he determined the injury was not work-related and refused to provide further treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 1, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2000. 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 decision were mailed October 19, 2000 to the following parties:
Elizabeth Badillo, 2122 9th St., #3, Greeley, CO 80631
Wal-Mart, 3523 23rd St., Greeley, CO 80631
Karen Goad, Claims Adjuster, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006-8458
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy