W.C. No. 4-372-853Industrial Claim Appeals Office.
April 5, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed her request for medical benefits. We affirm
In 1994 the claimant suffered an occupational disease of both hands and wrists. The claimant reported the injury to the respondent who provided treatment for a diagnosis of tendinitis and right upper extremity musculoskeletal pain. The claimant was placed at maximum medical improvement on May 23, 1996, with no permanent medical impairment
The claimant subsequently moved to California. In 1997, the claimant began working full-time as a teacher’s aide at a day care. In early 1998 the claimant requested additional medical treatment for the 1994 injury. The respondents refused the request. The claimant also requested a reduced work schedule due to complaints of wrist pain. The day care accommodated the claimant’s request. However, in May 1998 the claimant resigned from the employment due to a worsening of her condition from the wrist pain
The ALJ found that the claim is barred by the two year statute of limitations in § 8-43-103(2), C.R.S. 1999. Crediting the opinions of Dr. Mueller and Dr. Gunderson, the ALJ also determined the claimant failed to sustain her burden to prove that the need for additional medical treatment is causally related to the 1994 injury. Instead, the ALJ found that the day care work exacerbated her underlying condition from the 1994 injury Accordingly, the ALJ determined that even if the claim was not barred by the statute of limitations, the claimant is not entitled to additional medical benefits in this claim
On appeal the claimant contends the ALJ erroneously determined that the statute of limitations was not tolled by the respondent’s failure to file a first report of injury until March 1998. Alternatively, the claimant contends the ALJ misapplied the law in finding that the claimant failed to establish a causal relationship between the occupational disease and the need for additional medical treatment. The claimant also contends the ALJ erroneously credited the opinions of Dr. Mueller. The claimant argues that Dr. Mueller’s report is internally inconsistent because Dr. Mueller found the claimant to be “very truthful and reliable” and yet disregarded the claimant’s statements in determining the cause of the claimant’s ongoing upper extremity problems. We perceive no error in the ALJ’s determination that the claimant failed to prove the requisite causal connection between the occupational disease and the need for further medical treatment. Therefore, we do not consider the claimant’s other arguments § 8-41-304(1) C.R.S. 1999 provides that liability for an occupational disease is governed by the “last injurious exposure” rule Royal Globe Insurance Co. Collins, 723 P.d. 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)
The claimant’s arguments notwithstanding, the ALJ correctly recognized that § 8-41-304(1) does not govern the determination of liability for medical benefits in a claim based upon an occupational disease. This is because, in the context of § 8-41-304(1), the term “compensation” does not include “medical benefits.” Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo 1986). Thus, liability for medical benefits is not dependent upon the employment in which the claimant was “last injuriously exposed” or whether the claimant suffered a “substantial permanent aggravation.” Rather, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. Collins, supra
The question of whether an insurer was “on the risk” at the time medical expenses are incurred is to be determined under the usual rules governing liability for workers’ compensation benefits. See Wallace v. Home Base W.C. No. 4-210-135 (June 6, 1996); Rigdon v. Doubletree Hotels, W.C. Nos. 4-175-649, 4-211-377, (March 18, 1996); Martinez v. Storage Technology Corp., W.C. No. 4-175-875, (August 31, 1995). We concluded in these cases that in order to impose liability for medical benefits on a particular employer or insurer the evidence must establish a causal connection between the need for medical benefits and the employment. In other words, liability is imposed on the employer whose employment caused, aggravated, or accelerated the occupational disease. The court agreed with our conclusions in See Rodriguez v. Benny’s Concrete, Inc., W.C. No. 3-825-227 (February 24, 1999), aff’d., Rodriguez v. California Indemnity Insurance Company, (Colo.App. No. 99CA0475, October 21, 1999) (not selected for publication)
Furthermore, the determination of which employment caused the need for medical treatment is one of fact for resolution by the ALJ. Rodriguez v. Benny’s Concrete, Inc., supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 1999; Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No 99CA1067, March 16, 2000). Under this standard we must defer to the ALJ’s assessment of the sufficiency and weight of the evidence and plausible inferences the ALJ drew from the record. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In addition, we may not interfere with the ALJ’s credibility determinations except in extreme circumstances where the testimony he credited is overwhelmingly rebutted by hard, certain evidence to the contrary See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Arenas v. Industrial Claim Appeals Office, supra.
Notwithstanding the claimant’s arguments, the ALJ’s order reflects his application of the proper legal standard in resolving the claimant’s request for additional medical benefits. Further, the record is subject to conflicting inferences. However, there is substantial evidence in the medical reports of Dr. Mueller and Dr. Gunderson to support the ALJ’s pertinent findings. On May 18, 1999, Dr. Gunderson reported that the claimant stated she was asymptomatic before she began working at the day care center. He also opined that the claimant’s underlying condition from the 1994 injury was “exacerbated” at the day care
Following an independent medical examination on August 17, 1999, Dr. Mueller opined that the upper arm and forearm complaints the claimant made when she sought treatment in 1998 are not present in the medical records for treatment of the 1994 industrial injury. Dr. Mueller also opined that “there is clearly no relationship between the [claimant’s] current complaints and her tendinitis of 1994 and 1996.” (Mueller August 31, 1999)
To the extent Dr. Mueller’s report contains internal inconsistencies it was for the ALJ to resolve them and we may not substitute our judgment for that of the ALJ. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Moreover, regardless of the inconsistencies, Dr. Mueller’s opinions are consistent with the opinions of Dr. Gunderson. Under these circumstances, we cannot say the ALJ erred in crediting Dr Mueller’s report. See Arenas v. Industrial Claim Appeals Office, supra.
We note that the opinions of Dr. Mueller and Dr. Gunderson are buttressed by the claimant’s testimony that she began wearing a wrist splint shortly after beginning the day care job. (Brahany depo. p. 18). She also testified that her wrist pain worsened during her employment at the day care center to the point that she was unable to perform even part-time work. (Brahany depo. p. 15) Therefore, we must uphold the ALJ’s finding that the need for additional treatment was not attributable to the 1994 injury
The claimant’s failure to prove the requisite causal connection between the 1994 injury and the current need for treatment is fatal to the claim for additional medical benefits Therefore, the ALJ’s error, if any, in resolving the statute of limitations defense is harmless. § 8-43-310
C.R.S. 1999; A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988). (error which is not prejudicial will be disregarded) Consequently, the ALJ’s order is affirmed, and we do need not consider whether the ALJ misapplied the law in finding that statute of limitations was not tolled
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 1999, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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. 1999 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 April 5, 2000 to the following parties:
Tamara Brahany, 1807 Lincoln Ave., San Jose, CA 95125
University of Colorado 27-02-2, dba University of Colorado Medical School, 4200 E. 9th Ave., Denver, CO 80262
Office of University Risk Management, 4001 Discovery Dr., #230, Boulder, CO 80303
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy