W.C. No. 4-415-695Industrial Claim Appeals Office.
June 6, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Hopf (ALJ) which determined the claimant suffered a compensable occupational disease and awarded workers’ compensation benefits without apportionment. We affirm.
On December 13, 1997, the claimant was involved in a non-work-related motor vehicle accident. As a result of the accident the claimant complained of neck pain, back pain, and headaches. The claimant was off work until January 8, 1998, when he returned to work without restriction.
The claimant is employed as a warehouse loader. The ALJ found the claimant’s job duties require repetitive lifting of up to 150 pounds from the floor to 5 feet, pushing and pulling a cart requiring a force of 230 pounds, and carrying and lifting 52 pounds overhead.
The claimant’s condition worsened after January 1998. The ALJ found that by June 1998, the claimant had a pronounced limp, and experienced difficulty when walking, lifting, twisting and bending. On July 9, 1998, Dr. Parkhurst restricted the claimant to modified employment. The employer could only accommodate the restrictions for one week and the claimant’s last day of work was July 13, 1998.
On December 4, 1998, Dr. Ewing diagnosed sacroiliac and low back dysfunction due to the vehicle accident and “heavy physical activity.” On September 8, 1999, the claimant underwent a lumbar laminectomy at L5-S1.
Dr. Hrutkay performed an independent medical examination (IME) in December 1999. He opined the claimant’s low back problems were initially caused by the motor vehicle accident, but were aggravated by work activities between January and June 1998. Dr. Hrutkay apportioned 75 percent of the claimant’s back condition and surgery to the motor vehicle accident and 25 percent to the claimant’s subsequent work activities.
Crediting the opinions of Dr. Ewing and Dr. Hrutkay, the ALJ found the claimant sustained his burden to prove a compensable occupational disease resulting from the aggravation of his pre-existing back condition. Expressly relying on our conclusions in Torgerson v. Wycon Construction, W.C. No. 4-336-530 (April 13, 1999), the ALJ also determined that no apportionment of medical or temporary disability benefits was appropriate. Consequently, the ALJ held the respondent liable for 100 percent of the temporary disability and medical benefits awarded on account of the occupational disease.
On review the respondent does not dispute the ALJ’s findings that the claimant suffered a compensable occupational disease and is entitled to workers’ compensation benefits. Instead, the respondent contends the ALJ erroneously refused to apportion liability for temporary disability and medical benefits. The respondent contends Torgerson is factually and legally distinguishable from the circumstances presented here. Furthermore, the respondent contends that Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), compels apportionment of the award of temporary disability and medical benefits. We disagree.
The ALJ correctly found that 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.” Section 8-40-201(14), C.R.S. 2000; Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997). I Anderson v. Brinkhoff, supra, the court held that where the occupational exposure is not a precondition to the development of the disease, the claimant suffers an occupational disease only to the extent that the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought. Accordingly Anderson v. Brinkhoff, supra, authorizes the apportionment of medical and temporary disability benefits in cases where the claimant’s occupational disease is the result of more than one cause. However, where there is but one cause of the claimant’s disease process, and the cause is industrial in origin, the claim is fully compensable without apportionment. Furthermore, an occupational disease does not have “two causes” merely because the industrial aggravation is superimposed on a pre-existing condition.
Contrary to the respondent’s contention, the ALJ expressly considered and rejected the request for apportionment. The ALJ found the claimant’s back condition from the motor vehicle accident was not disabling in January 1998 when the claimant returned to his regular employment. Rather, the ALJ found the claimant was capable of performing his duties, although with pain. In fact, the ALJ determined that it was “only after performing his heavy work duties from January through June 1998 that the Claimant’s condition deteriorated” to the point the employer could not accommodate his condition. (Discussion and Conclusions of Law page 5). Thus, the ALJ implicitly determined that the heavy lifting activities at work were a precondition to the development of the occupational disease, and there was only one cause of the claimant’s occupational disease.
We also reject the respondent’s contention the ALJ mistakenly relied on our conclusions in Torgerson v. Wycon Construction, supra. I Torgerson we upheld an ALJ’s conclusion that Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), is not applicable to the apportionment of medical benefits based upon pre-existing medical impairment. Further, we declined to extend Askew to the apportionment of medical benefits where the industrial injury aggravates or accelerates a preexisting non-industrial condition. Rather, we concluded that the industrial injury aggravates or accelerates a pre-existing condition, employers are fully liable for necessary medical treatment.
Here, the ALJ determined that the sole cause of the occupational disease was the industrial aggravation of the pre-existing condition from the motor vehicle accident and that all of the claimant’s subsequent disability and need for treatment was attributable to the occupational disease. Under these circumstances, Torgerson is consistent with the ALJ’s conclusion that no apportionment of medical benefits is appropriate where the occupational disease is solely the result of the aggravation.
The ALJ’s finding that the conditions of employment were the sole cause of the disability for which the claimant sought workers’ compensation benefits is supported by substantial evidence in the record and therefore, must be upheld. Section 8-43-301(8), C.R.S. 2000; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701
(Colo.App. 1999); General Iron Works v. Industrial Commission, 719 P.2d 353
(Colo.App. 1985). Further, the findings support her conclusion that no apportionment of temporary disability and medical benefits is appropriate regardless of Dr. Hrutkay’s opinions to the contrary. See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (uncontroverted medical evidence not binding on the ALJ).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 12, 2000, 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. 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 June 6, 2001 to the following parties:
Kevin Cross, 2621 49th Ave. Court, Greeley, CO 80634
McLane Company, Doug Marino, McLane Western, 2100 East Highway 119, Longmont, CO 80504
Karen Nitsch and Rusty Pinckney, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064-2130
Julie Scroggins Frantz, Esq. and Pamela A. Shaddock, Esq., 1100 Tenth St., #402, P. O. Box 730, Greeley, CO 80632-0730 (For Claimant)
Craig P. Henderson, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondent)
BY: A. Pendroy