W.C. Nos. 4-618-354, 4-654-178.Industrial Claim Appeals Office.
May 26, 2006.
FINAL ORDER
Pridemark Paramedic Service (Pridemark) and Pinnacol Assurance seek review of an order dated October 18, 2005 of Administrative Law Judge Stuber (ALJ), which determined that the claimant was last injuriously exposed to an occupational disease while employed by Pridemark, which is responsible for certain medical and disability benefits. We affirm.
Several of the ALJ’s findings of fact in support of his order are summarized as follows. The claimant worked as a paramedic for 15 years. He worked as a paramedic first for Pridemark, then for American Medical Response (AMR) and then again for Pridemark. He subsequently worked as a dispatcher for Pridemark. His job duties as a paramedic for both employers included lifting, moving people and riding in an ambulance.
During the time he worked for AMR, the claimant reported neck and back pain, together with numbness in his left arm and hand. He was diagnosed with carpal tunnel syndrome. The claimant also has a herniated disc with nerve impingement.
When he last worked for Pridemark, the claimant requested to be transferred to a dispatcher job because he feared that continued work as a paramedic would cause further injury. He also advised Pridemark that he probably needed neck surgery. The claimant subsequently sought emergency room care for his symptoms and underwent spinal surgery. The claimant was eventually released to full-duty without restriction.
The claimant’s work as a paramedic for both employers was essentially the same, and the claimant’s pain felt worse when working in awkward positions or lifting patients for Pridemark. His symptoms also increased during his employment with Pridemark.
The ALJ also found the claimant’s work as a paramedic for Pridemark provided his last injurious exposure and substantial permanent aggravation for his occupational disease. He further found Pridemark caused the claimant’s need for medical treatment on or after April 25, 2004, but that such treatment was not authorized until June 1, 2004, by which time Pridemark effectively had notice of the claimant’s occupational injury and corresponding need for treatment.
Pridemark challenges the ALJ’s determination that it is liable for the claimant’s occupational disease. Essentially, Pridemark asserts that the ALJ’s determinations are not supported by substantial evidence. Pridemark’s arguments do not compel the conclusion that the ALJ erred. We therefore decline to disturb the ALJ’s decision.
Pridemark first argues that the claimant’s employment at Pridemark did not cause his need for medical treatment or aggravate his occupational disease. In support of its argument, Pridemark asserts that the ALJ’s findings are not supported by the evidence.
Pridemark is the last employer. Section 8-41-304(1), C.R.S. 2005, provides that liability for an occupational disease is governed by the “last injurious exposure” rule. Royal Globe Insurance Co. Collins, 723 P.2d. 731 (Colo. 1986). Under that rule, the employer in whose employment the claimant is “last injuriously exposed to the hazards of such disease and suffered a substantial, permanent aggravation” is solely responsible for the injury without contribution from any other employer. Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). However, liability for medical benefits in cases of occupational disease is not governed by § 8-41-304(1), because medical expenses are distinguishable from indemnity benefits. Royal Globe Insurance Co. v. Collins, supra. Instead, the insurer that provided coverage to the employer whose conditions of employment “caused, aggravated, or accelerated the claimant’s injury” is liable for medical benefits. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637, 640 (Colo.App. 2001).
Whether an employment caused the need for medical treatment is a question of fact for resolution by the ALJ. The ALJ found the claimant suffered an occupational disease in the nature of a herniated cervical disc due to his work as a paramedic for AMR and Pridemark that was caused by heavy lifting and awkward positioning while working as a paramedic. Findings of Fact, Conclusions of Law, and Order (Order) at 5, ¶ 27. He also found the claimant suffered injurious exposures to this disease doing similar work for both employers, with his work for either employer being sufficient to cause the disease. Order at 5-6, ¶ 28. The ALJ also found the claimant suffered his last injurious exposure to and substantial permanent aggravation of his occupational disease while working as a paramedic for Pridemark. He further found the claimant probably suffered increasing symptoms because of his work for Pridemark, thereby leading to his decision to have surgery and seek a change in job duties. Order at 6, ¶ 29.
We must uphold the ALJ’s findings of fact if supported by substantial evidence and plausible inferences drawn from the record. § 8-43-301(8), C.R.S. 2005; University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Further, the ALJ’s findings are sufficient if the basis of the order is apparent. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 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 testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, supra. Contrary to Pridemark’s argument, substantial evidence supports the ALJ’s findings. See, e.g., Tr. at 50-51, 58-59, 64-68, 104-05; Primack Deposition at 7, 42-43; Bosten Deposition at 29; Claimant’s Exhibit 6 at 91-92; AMR Exhibit D at 30-31; AMR Exhibit E at 63.
Pridemark also asserts that the ALJ failed to properly credit the opinions of Dr. Primack in light of the doctor’s comments regarding certain legal standards. However, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Finally, Pridemark disputes the ALJ’s finding that it had notice of a probable compensable injury approximately on June 1, 2004. Where a worker sustains an occupational disease, the insurer on the risk at the time that medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. v. Collins, 723 P.2d 731. However, the insurer is liable only for emergency and for “authorized” medical treatment Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). Authorization refers to the physician’s legal authority to treat the worker and expect to receive payment from the insurer for services that are reasonable and necessary to treat the industrial injury. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 507 (Colo.App. 1995). Under §8-43-404(5)(a), C.R.S. 2005, the employer has the right in the first instance to designate the authorized provider to treat the claimant’s compensable condition. The rationale for this principle is that the employer or insurer may ultimately be liable for the claimant’s medical bills and, therefore, has an interest in knowing what treatment is being provided. Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo.App. No. 04CA1691, Aug. 11, 2005). Consequently, if the claimant obtains unauthorized medical treatment, the respondents are not required to pay for it. Section 8-43-404(7), C.R.S. 2005; Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999) Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
In order to assert the statutory right to designate a provider in the first instance, the employer has an obligation to name the treating physician forthwith upon receiving notice of the compensable injury. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The employer’s failure to designate the authorized treating physician results in the right of selection passing to the claimant. Id. The employer’s duty is triggered once the employer or insurer has some knowledge of facts that would lead a reasonably conscientious manager to believe the case may involve a claim for compensation. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). This inquiry presents a question of fact for the ALJ’s determination Popke v. Industrial Claim Appeals Office, 944 P.2d 677
(Colo.App. 1997).
Accordingly, we must uphold the ALJ’s findings concerning these questions if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2005. Insofar as the evidence is in conflict or subject to contrary inferences, it is the ALJ’s sole responsibility to weigh the evidence and resolve those conflicts, and we must defer to the ALJ’s determinations. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Here, there is record support for the ALJ’s findings that the claimant was implicitly authorized by Pridemark to choose treating physicians after Pridemark had notice of the probable compensable occupational disease and corresponding need for treatment by June 1, 2004, but failed to refer him for treatment. The ALJ referred to evidence indicating that the claimant informed Pridemark that he would probably need neck surgery and could no longer work as a paramedic. See, e.g., Tr. at; Bosten Deposition at 11-12, 14-16, 31, 35-36; Pridemark’s Exhibit R at 198. Hence, the ALJ’s determination as to Pridemark’s notice of a potential compensable occupational disease and corresponding need for medical treatment is fully supported by the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 18, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________________ John D. Baird
______________________________________ Thomas Schrant
Matthew E. Bergland, Colorado Springs, CO, Pridemark Paramedic Service, Arvada, CO, American Medical Response, Livermore, CA, Brandee DeFalco Galvin, Esq., Legal Department — Pinnacol Assurance American Home Assurance, c/o Emily Finn, Sedgwick CMS, Greenwood Village, CO, Renee C. Ozer, Esq., Colorado Springs, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents Pridemark Paramedic Service and Pinnacol Assurance).
Douglas A. Thomas, Esq., Greenwood Village, CO, (For Respondents American Medical Response and American Home Assurance).