W.C. No. 4-279-368Industrial Claim Appeals Office.
February 21, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which apportioned liability for medical benefits. We affirm.
In November 1995, the claimant suffered compensable injuries to her right arm, left shoulder, right knee, and neck. The claimant treated with Dr. Moore and Dr. Kleen for neck pain. Both physicians recommend the claimant undergo a cervical fusion.
The claimant had previously suffered a work-related injury on November 23, 1991, while employed by Joslins. As a result of that injury, the claimant treated with Dr. Morris for neck pain. In 1993, Dr. Morris evaluated the claimant as a candidate for cervical surgery. However, the claimant requested a course of physical therapy before considering surgical intervention.
Dr. Moore apportioned 70 percent of the need for the cervical fusion surgery to the 1991 injury and 30 percent to the 1995 injury. Dr. Messner performed a record review and agreed with Dr. Moore that 70 percent of the cause of the need for surgery is attributable to the 1991 injury. In contrast, Dr. Kleen opined that regardless of the claimant’s pre-existing condition, the 1995 injury triggered the need for surgery. Therefore, Dr. Kleen opined that the 1995 injury is the sole cause of the need for the fusion surgery.
The ALJ found that the 1991 and 1995 injuries both contributed to the need for the surgery. Crediting the opinions of Dr. Moore and Dr. Messner, the ALJ apportioned 30 liability for treatment of the claimant’s neck condition, including the fusion surgery to the respondent. The claimant timely appealed.
On appeal, the claimant contends the 1991 injury was not independently disabling at the time of the 1995 injury. In support, the claimant contends she had no medical restrictions as a result of the 1991 injury, and had no treatment between 1993 and the 1995 injury except for one doctor’s appointment in June 1995. Therefore, the claimant contends the ALJ erroneously apportioned liability for medical benefits. We perceive no error.
As argued by the claimant, the employer takes the claimant as it finds her. The existence of a pre-existing condition does not preclude a claimant from suffering a new injury where the employment activities accelerate, aggravate, or combine with the pre-existing condition to produce the condition for which medical treatment is sought. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the issue in this case was not compensability. To the contrary, the respondent admitted the claimant suffered a new injury in 1995 from the aggravation of her pre-existing neck condition.
Further, where a claimant’s need for medical treatment may be traced to two or more industrial injuries, the ALJ has authority to apportion medical benefits in proportion to the contribution of each injury. State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807
(Colo.App. 1985); see also Waterfield v. Poudre Valley Hospital, W.C. No. 4-165-022 (June 16, 1998); Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997). Therefore, H H Warehouse v. Vicory, supra, is not dispositive of the issue presented here.
The cause of the claimant’s need for treatment is a question of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). We must uphold the ALJ’s factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (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 or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, the record contains conflicting evidence concerning the cause of the claimant’s need for fusion surgery. The ALJ was more persuaded by the opinions of Dr. Moore and Dr. Messner than the opinions of Dr. Kleen. There is substantial evidence in the testimony of Dr. Messner and Dr. Moore to support the ALJ’s pertinent findings of fact. Furthermore, the ALJ’s findings support the apportionment of liability for medical benefits. Therefore, we need not address the evidence upon which the claimant relies that, if credited, might support a contrary determination. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The claimant’s remaining arguments have been considered and are not persuasive. Admittedly, § 8-42-104(2), C.R.S. 2000, precludes apportionment to a pre-existing injury which is asymptomatic at the time of the subsequent injury. See Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). However, the principles identified in Askew and Lambert have no application to medical benefits. Section 8-42-104(2)(c), by its own terms, applies only to awards of “permanent total” and “permanent partial disability benefits. The apportionment statute does not apply to awards of medical benefits, and neither does the case law which interprets that statute. See Martin v. Montrose Memorial Hospital, W.C. No. 4-348-316 (July 10, 1998). Therefore, evidence that the claimant’s pre-existing neck condition was not independently disabling at the time of the 1995 injury did not preclude the ALJ from apportioning 70 percent liability for medical benefits to the 1991 injury. See State Compensation Insurance Fund v. Industrial Commission, supra; Hays v. Don Massey Cadillac, Inc., supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 31, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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 February 21, 2001 to the following parties:
Debie Cuherpin, 11070 Hirschfeld Way, Apt. 62, Rancho Cordoba, CA 95670
Foley’s, 15 S. Steele, Denver, CO 80209
Timothy Mullarkey, Central Regional Claims Corporation, May Company, 614 Locust St., St. Louis, MO 63101-1707
Sally L. MacLuckie, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Robert A. Weinberger, Esq. and Kristin M. Murphy, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondent)
BY: A. Pendroy