W.C. No. 4-321-251Industrial Claim Appeals Office.
August 21, 1998
FINAL ORDER
The claimant seeks review of a Supplemental Order issued by Administrative Law Judge Gandy (ALJ). The claimant contends the ALJ erroneously found that medical treatment for Trousseau’s syndrome and cancer was not compensable after February 26, 1997. The claimant also contests the ALJ’s consideration of a medical report. Finally, the claimant argues the ALJ was without jurisdiction to enter the Supplemental Order. We affirm.
This matter was before us previously. In an order issued on December 30, 1997, we set aside the ALJ’s order dated June 19, 1997, and remanded with directions to make “explicit findings of fact determining whether the claimant’s ankle injury aggravated or accelerated the development of Trousseau’s syndrome.” We also stated that if the ALJ found a compensable aggravation or acceleration, he should “determine the extent to which the claimant’s disability and ongoing need for treatment is a proximate and natural result of that aggravation or acceleration.” Our December 30 order contains an extensive statement of the evidence, and we incorporate that statement here.
On February 7, 1998, the ALJ entered an order in response to our Order of Remand. Both the claimant and respondents filed timely petitions to review, and subsequently submitted briefs in support.
On April 29, 1998, the ALJ entered the Supplemental Order now in dispute. Relying principally on the testimony of Dr. Garfield, the ALJ found that, although the claimant’s December 1996 industrial ankle injury aggravated the claimant’s “hypercoagulable state” and produced clinical Trousseau’s syndrome, that aggravation was not the proximate cause of the claimant’s need for treatment after February 26, 1997. Instead, the ALJ found that the claimant’s blood clotting disorder, attributable to Trousseau’s syndrome and his underlying cancer, “can, and does, occur without an intervening event or trauma.” Specifically, the ALJ stated that the “disseminated type of coagulability seen in Trousseau’s syndrome, with clots erupting at sites remote from any point of physical trauma, is caused by an underlying cancer and substance emitted by the cancer which circulate throughout the body so blood vessels very distant from the original clot are affected.” Hence, the ALJ denied the claim for medical and disability benefits after February 26.
I.
On review, the claimant contends the evidence does not support the ALJ’s conclusion that the claimant’s need for treatment after February 26, 1997, is not causally connected to the December 1996 industrial injury. The claimant argues that industrial aggravations and accelerations of preexisting conditions constitute compensable events under the Workers’ Compensation Act (Act). Therefore, since the industrial ankle injury caused the first clinical manifestation of Trousseau’s syndrome, the claimant reasons that all treatment for that condition, and the underlying cancer, is a compensable consequence of the ankle injury. In support of this argument, the claimant relies on the testimony of Dr. Manco-Johnson, as well as that of Dr. Garfield. The claimant points out that Dr. Garfield testified that the industrial injury caused Trousseau’s syndrome to “manifest itself earlier” than it would have otherwise, and rendered a “subclinical problem a clinical problem.” (Tr. pp. 83, 91). We find no deficiency in the evidence, and conclude that it supports the ALJ’s order.
We do not dispute the claimant’s legal position that, under the Act, industrial aggravations or accelerations of preexisting conditions constitute compensable events. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). In fact, we expressly recognized this principle in our prior order. However, we also held that the mere occurrence of a compensable injury does not require an ALJ to find that all subsequent medical treatment and physical disability was caused by the industrial injury. To the contrary, the range of compensable consequences of an industrial injury is limited to those which flow proximately and naturally from the injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); § 8-41-301(1)(c), C.R.S. 1997.
The question of whether an industrial injury is the cause of a subsequent need for medical treatment is largely one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, it was the prerogative of the ALJ to assess the weight and credibility of the medical testimony offered on the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, to the extent the testimony of a medical expert contained inconsistencies, or was subject to multiple interpretations, it was for the ALJ to resolve such conflicts. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968).
The claimant’s arguments notwithstanding, substantial evidence supports the ALJ’s determination that, although the ankle injury constituted a compensable event, that event was not the cause of the claimant’s need for treatment after February 26, 1997. A plausible interpretation of Dr. Garfield’s testimony, and the interpretation adopted by the ALJ, is that the industrial injury aggravated the claimant’s preexisting hypercoagulative state so as to move it from a subclinical state to clinical Trousseau’s syndrome. As a result, the claimant experienced clotting in his leg. However, Dr. Garfield did not believe that the industrial injury caused or accelerated the claimant’s Trousseau’s syndrome so as to produce generalized clotting throughout the claimant’s body. To the contrary, Dr. Garfield opined that the generalized clotting represented the natural progression of the preexisting disease process uninfluenced by the industrial injury. (Tr. pp. 78-84, 90-91).
It is true the record contains evidence which might support contrary findings and conclusions. However, the mere existence of conflicts in the evidence affords no basis for relief on appeal May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).
For the same reasons, we reject the claimant’s assertion that the ankle injury constituted an aggravation of the claimant’s cancer which entitles him to benefits beyond February 26. To the extent the claimant’s blood condition may be seen as a function of the claimant’s cancer, the evidence supports the conclusion that the compensable aggravation ended as of February 26.
II.
The claimant also argues that treatment of the claimant’s underlying cancer is compensable because it is necessary to cure or control the cancer in order to cure or control the Trousseau’s syndrome. Under these facts, we are not persuaded.
As we noted in Flynn v. M.A.G. Mining, Inc., W.C. No. 4-256-973 (June 6, 1997), treatment of a preexisting non-industrial condition may be compensable if such treatment is necessary to cure and relieve the effects of the industrial injury. See also, Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). However, the question of whether such treatment is reasonable and necessary is one of fact for determination by the ALJ. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Here, the ALJ determined that, except for the limited treatment of the claimant’s ankle injury and related clotting, the claimant’s cancer and Trousseau’s syndrome are progressing independent of the injury. Under these circumstances, the ALJ could conclude that treatment for cancer and Trousseau’s syndrome is now unrelated to the industrial injury, and is not necessary to cure or relieve the limited effects of the injury.
III.
The claimant next contends the ALJ erred in relying on a medical report issued by Dr. van den Hoven on August 15, 1997. As the claimant points out, this report was never admitted as evidence in the case. However, we conclude the error is harmless.
The ALJ refers to Dr. van den Hoven’s report in Finding of Fact 12. The entire finding is as follows:
“Dr. Raymond van den Hoven found, on August 15, 1997, that the Claimant was at MMI, and asymptomatic with regard to his ankle injury and thrombosis, with no ratable impairment related to his ankle injury.”
The erroneous admission of evidence does not constitute grounds for reversal unless the evidence affected a substantial right of a party. C.R.E. 103(a); § 8-43-310, C.R.S. 1997. Here, we find no error because the record reveals that admission of Dr. van den Hoven’s report did not affect the claimant’s substantial rights. To the contrary, the central issues in the case revolved around causation. Insofar as Dr. van den Hoven’s report addresses that issue, it is partially favorable to the claimant because the report states that the ankle injury “likely did trigger deep venous thrombosis in an individual already predisposed to deep venous thromboses.” In fact, it was the claimant who initially sought to have the report considered. In any event, the totality of the ALJ’s order reflects that it was the testimony of Dr. Garfield, not the report of Dr. van den Hoven, which was decisive in resolving the causation issue. (Finding of Fact 19). Consequently, the erroneous admission of Dr. van den Hoven’s report, and its mention in Finding of Fact 12, constitutes harmless error.
IV.
The claimant’s final argument is that the ALJ lacked jurisdiction to issue the April 29, 1998, “Supplemental Order.” The claimant asserts that the February 7, 1998, order was the “unappealed Final Order with regard to the issues resolved at the hearing held on May 16, 1997.” According to the claimant, this is true because the February 7 order is analogous to a supplemental order, and no briefs accompanied the parties’ petitions to review the February 7 order.
Initially, we disagree with the claimant’s assertion that the ALJ’s February 7 order is analogous to a supplemental order issued under § 8-43-301(6), C.R.S. 1997. To the contrary, the effect of our Order of Remand was to set aside the ALJ’s initial order of June 19, 1997, and direct the entry of a “new order” containing additional findings of fact. Consequently, on February 7, 1998, the status of the case was as if no initial order had ever been entered. Under such circumstances, the ALJ’s February 7 order was akin to an initial order reviewable under the procedures set forth in § 8-43-301(2), C.R.S. 1997, not a supplemental order reviewable under § 8-43-301(6). Thus, we conclude the ALJ had authority to enter the February 7 order, as well as the Supplemental Order issued on April 29.
In any event, the claimant incorrectly states that the failure to file a brief in connection with a petition to review a supplemental order constitutes a jurisdictional defect. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986); §8-43-301(7), C.R.S. 1997 (Division to transmit record to ICAP “when all briefs are submitted to it or within fifteen days of the date briefs were due”).
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated April 29, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Dona Halsey
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 21, 1998 to the following parties:
Daniel Boone, 18152 Shoshone Dr., Sterling, CO 80751
Wendy Dankievitch, Winslow Construction Co., 3002 S. Heron St., Englewood, CO 80110
Amy Berg Joseph Weipert, RTW of Colorado, 7400 E. Orchard Rd., Ste. 3025, Englewood, CO 80111
William J. McDonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For the Claimant)
Mark H. Dumm, Esq. J.J. Fraser, III, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
By: _______________________