W.C. No. 4-548-535Industrial Claim Appeals Office.
July 14, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which required them to provide medical benefits. We affirm.
The claimant injured his right lower extremity on February 2, 2001. The respondents admitted liability in W.C. No. 4-539-400. Despite treatment the claimant complained of persistent numbness in his foot and leg pain. Dr. Pitzer recommended an MRI to rule out any proximal abnormality as the cause of the claimant’s symptoms.
An MRI on February 22, 2002, revealed a disc protrusion at L5-S1. Based upon the MRI, Dr. Pitzer opined the claimant’s pain complaints were the result of several medical processes including a lumbar disc herniation or disc extrusion, probable peroneal nerve trauma, and tibial nerve injury or compression secondary to infection/swelling after multiple surgeries and trauma. Further, Dr. Pitzer opined the claimant’s disc problem is probably related to the claimant’s history of heavy lifting at work. Dr. Griffin recommended myelography testing to further evaluate the claimant’s back condition.
The claimant subsequently filed this workers’ compensation claim and alleged a gradual low back injury from his employment as a delivery driver. The respondents denied liability.
The ALJ found the claimant’s job duties require repetitive heavy lifting. Crediting the opinions of Dr. Pitzer and claimant’s testimony, the ALJ also found that as a result of the claimant’s job duties he experienced a gradual worsening of his preexisting condition from a 1996 back injury. Therefore, the ALJ determined the claimant proved he sustained a compensable occupational disease affecting his back. Furthermore, the ALJ determined Dr. Pitzer is an authorized treating physician and ordered the respondents to provide further medical evaluation of the back injury as recommended by the authorized treating physicians.
On appeal the respondents contend the ALJ erroneously allowed the claimant to circumvent the Division-sponsored independent medical examination (DIME) process by allowing the claimant to challenge Dr. Pitzer’s finding of maximum medical improvement (MMI) for the February 2001 injury without requiring the claimant to obtain a DIME. We disagree.
Section 8-42-101(1), C.R.S. 2002, requires the employer to provide medical benefits to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). The employer’s obligation continues until the claimant reaches MMI. Under § 8-42-107(8)(b)(I) and (II), C.R.S. 2002, the initial determination of MMI is to be made by an authorized treating physician, and if either party disputes that determination, the claimant must undergo a DIME. That statute also provides that the ALJ lacks authority to determine the accuracy of the physician’s MMI finding until the claimant has undergone a DIME. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Further, the DIME physician’s opinion on MMI is binding except where overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002; Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). However, the claimant bears the initial burden to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment. Whether the claimant met this burden of proof is a question of fact for the ALJ, which is not governed by the DIME process. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Indeed, the courts have declined to extend the DIME provisions to initial compensability determinations. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002) (DIME physician’s opinion concerning whether or not condition worsened so as to justify reopening not entitled to “special weight” under DIME procedure).
We recognize the record contains evidence that the herniated disc was discovered in the course of authorized treatment for the admitted right lower extremity injury. Indeed, the MRI was recommended to determine whether the leg injury was the source of the claimant’s foot numbness. Further, the claimant testified that the authorized treating physician for the right lower extremity injury had placed him at MMI. (Tr. p. 17). However, the claimant was not seeking to prove the extent of the admitted leg injury. If he had been, the argument in favor of requiring a DIME to resolve the causation issue might be persuasive. Instead, the claimant sought to prove an entirely different injury in the nature of an occupational disease which affected his low back. It follows that the claimant had the initial burden of proof to establish the occurrence of this injury, and no DIME was required to resolve that issue. Faulkner v. Industrial Claim Appeals Office, supra. Thus, there was no error in the ALJ’s order.
Moreover, although the claimant did not explicitly complain of low back pain to the treating physicians, he did complain of numbness and pain radiating into the lower extremities which could not be explained by the mechanism of the March 2 injury. The medical evidence is subject to conflicting inferences, but there is substantial evidence in the claimant’s testimony and the February 26, 2002 report of Dr. Pitzer to support the ALJ’s finding that the claimant’s symptomatology was caused by the occupational disease. Therefore, we must uphold the ALJ’s finding of a compensable occupational disease.
Nevertheless, the respondents contend that the award of medical benefits is erroneous because there is no finding or evidence that the back injury is disabling. Again, we disagree.
It is true that for claims based upon an occupational disease, the date of injury is the date the claimant experiences the “onset of disability.”See SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470
(Colo.App. 1994). The “onset of disability” occurs when the claimant is physically incapacitated from performing his regular employment. 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).
However, in claims based upon an occupational disease, the Workers’ Compensation Act treats medical and disability benefits differently Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). This is because the need for medical treatment does not necessarily coincide with onset of disability. Under these circumstances, the courts have concluded it would be unfair to award medical benefits for an industrial accident that is not disabling but deny medical treatment for an occupational disease just because it has not yet caused a disability. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Here, the ALJ determined additional testing including myelography is reasonable and necessary to evaluate the claimant’s back condition resulting from the occupational disease. This determination supports the award of medical benefits and, therefore, it is immaterial whether the claimant established the onset of disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 22, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 14, 2003 to the following parties:
William Barnes, 6643 S. Sycamore St., Littleton, CO 80120
Michael McGee, Anheuser-Busch Sales Co. of Denver, 1455 E. 62nd Ave., Denver, CO 80216
Leslie Cavanaugh, LWP Claims Administrators Corp., 575 Union Blvd., #310, Lakewood, CO 80228
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202
BY: A. Hurtado