W.C. Nos. 4-315-484, 3-106-253Industrial Claim Appeals Office.
July 2, 1998
ORDER OF REMAND
Union Insurance Company, and its insured, Illusions of the Heart (collectively the Union Insurance respondents) have petitioned for review of orders entered in this matter by Administrative Law Judge Martinez (ALJ) on June 23, 1997 and February 10, 1998. We set aside the orders insofar as they require the Union Insurance respondents to pay medical benefits, and remand the matter to the ALJ for the entry of a new order on that issue, and dismiss the remainder of the petition without prejudice.
On June 1, 1992, the claimant sustained an occupational disease from the repetitive activities required of her job as a seamstress for Illusions of the Heart (Illusions). Union Insurance Company admitted liability and paid temporary disability benefits. Dr. Richards placed the claimant at maximum medical improvement (MMI) on January 25, 1993 and released the claimant to return to her pre-injury job as long as she varied the type of work she did and “did not sew for more than a couple hours at a time without resting.” The claimant returned to “light duty” work at Illusions in early 1993 and continued to perform this work until August 1996, when she quit.
The Colorado Compensation Insurance Authority (CCIA) became the workers’ compensation insurance carrier for Illusions effective March 1994. The claimant was reexamined by Dr. Richards in April 1994 and August 1998, with complaints of pain and numbness in her hands and wrists. The claimant subsequently petitioned to reopen the claim and alleged a worsened condition. The claimant also requested an award of additional medical benefits. The Union Insurance respondents denied liability and argued that pursuant to § 8-41-304(1), C.R.S. 1997, liability for the claimant’s occupational disease shifted to the CCIA. That statute provides that:
“Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier.” (Emphasis added).
In the June 23, 1997 order, the ALJ found that the claimant sustained her burden to prove that she suffered a worsening of her condition from the occupational disease, and is no longer at MMI. Therefore, the ALJ reopened the claim. Crediting the opinions of Dr. Richards, the ALJ further determined that the claimant was not injuriously exposed to the hazards of the disease after February 1994, and did not suffer a substantial, permanent aggravation of her condition from the light duty employment she performed after February 1994. Rather, the ALJ found that the worsening was the logical and recurrent consequence of the 1992 occupational disease. Therefore, the ALJ concluded that the Union Insurance respondents are liable for the claimant’s worsened condition. However, the ALJ did not award or deny any benefits or deny the claimant a penalty.
The Union Insurance respondents timely petitioned for review. However, in an order dated December 9, 1997, we dismissed the petition for lack of a final order.
On February 10, 1998, the ALJ ordered the Union Insurance respondents to pay for medical expenses incurred by the claimant with Dr. Richards in April 1994 and August 1996. The Union Insurance respondents timely appealed the February 10 order, and the matter was subsequently transmitted for our review.
I.
On review, the Union Insurance respondents contest the ALJ’s finding that the CCIA is not liable for any further compensation payable on account of the claimant’s occupational disease. The Union Insurance respondents contend that they established the evidence required by § 8-41-304(1) to impose liability on the subsequent insurer. We conclude that this portion of the ALJ’s order is still interlocutory.
As stated in our prior order, to be reviewable, an order must require the payment of benefits or penalties, or deny the claimant benefits or penalties. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Furthermore, an order may be partially final and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
The ALJ rejected the argument that the CCIA is liable for the claimant’s worsened condition from the occupational disease. However, the ALJ did not order or deny any benefits other than medical benefits. Rather, the ALJ reserved all other issues for future determination. Moreover, no other benefits were requested. Therefore, the ALJ’s determination of which insurer is liable for any further compensation which may become payable on account of the claimant’s occupational disease, is not subject to review at this time. See Miller v. Reeder, 157 Colo. 134, 401 P.2d 604
(1965) (appeals are limited to review of errors which injuriously affect the rights of a party, as opposed to abstract legal questions). Consequently, we again dismiss this portion of the petition to review without prejudice.
Because the ALJ did not award or deny any disability benefits, it follows that the ALJ’s determination of average weekly wage is also interlocutory. Therefore, we do not consider the argument that the ALJ miscalculated the average weekly wage.
II.
However, the Union Insurance respondents correctly point out 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.
We have stated in a series of cases, that the question of whether an insurer was “on the risk” is to be determined under the usual rules governing liability for workers’ compensation benefits.” See 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). Accordingly, we have concluded that, 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, where a party seeks to impose liability on a subsequent insurer, the evidence must establish that, during the time of coverage by the subsequent insurer, the employment caused, aggravated, or accelerated the occupational disease before the subsequent insurer may be considered “on the risk” for medical expenses. We adhere to our prior conclusions.
The ALJ’s order does not reflect his consideration of the legal standard applicable to the payment of medical benefits for an occupational disease. To the contrary the ALJ’s order suggests that the award of medical benefits was based n the requirements of § 8-41-304(1).
Moreover, the record contains some evidence, which if credited, might support a finding that the claimant’s employment activities after February 1994, caused the need for further medical treatment. Dr. Richards testified that the symptoms the claimant described in 1994 were due to repetitive motions which “had aggravated more of the ulnar nerve at that time that was not evidenced in 1992.” (Richards depo. p. 27). Dr. Richards also stated that claimant’s “continued work activities continued to aggravate the underlying overuse syndrome” because “she continued to overuse what was already overused” and “wore them out further.” (Richards depo. p. 22). He opined that the work activities the claimant continued to do after 1992 “had an element or had a degree of causation in her continuing symptoms.” (Richards depo. p. 23). Similarly, he opined that the job activities the claimant did in 1994 caused “more problems with her ulnar nerve.” (Richards depo. p. 29).
The ALJ expressly relied upon Dr. Richards’ opinions. Therefore, we are unable to ascertain how the ALJ would have resolved the question of whether the Union Insurance respondents are responsible for the claimant’s medical treatment after February 1994, if he had recognized and applied the proper legal standard.
On remand, the ALJ must issue additional findings of fact which reflect his consideration of the proper legal standard for determining liability for medical benefits. Based upon those findings, the ALJ shall enter a new order concerning which insurer is liable for Dr. Richards treatment in 1994 and 1996.
IT IS THEREFORE ORDERED the ALJ’s order dated June 23, 1997 and February 10, 1998, are set aside insofar as they required the Union Insurance respondents to pay medical benefits for treatment after February 1994, and the matter is remanded to the ALJ for a new order on the issue of medical benefits, consistent with the views expressed herein.
IT IS FURTHER ORDERED that the remainder of the respondents’ petition to review is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for writ of certiorari with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 2, 1998 to the following parties:
Mary Cruthers, 575 29.5 Rd., Grand Junction, CO 81504
Illusions of the Heart, 859 E. Grand Ave., Fruita, CO 81521-3017
Albright Enterprises, Inc., 859 E. Grand Ave., Fruita, CO 81521-3017
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Union Insurance Company, Attn: Cindy Deist, P. O. Box 80439, Lincoln, NE 68501
Gregg Van De Mark, Esq., P. O. Box 4848, Grand Junction, CO 81502 (For Claimant)
Lynn P. Lyon, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Illusions of the Heart and Union Insurance Company)
BY: _______________________