W.C. Nos. 4-420-238, 4-460-875, 4-417-597Industrial Claim Appeals Office.
February 10, 2003
FINAL ORDER
EMC Insurance Company (EMC) and the Insurance Company of North America (ICNA) separately seek review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant suffered a compensable occupational disease and awarded medical benefits. We affirm the order in part, and dismiss part of the appeal for lack of a final order.
At all times relevant, the claimant was employed by The Hullinger Group (Hullinger) as a diesel mechanic. On April 1997, the claimant suffered a compensable right shoulder injury. At the time of the injury, Hullinger was insured for workers’ compensation by Argonaut Insurance Company (Argonaut). Between October 1, 1997 and December 31, 1999, Hullinger was insured by ICNA. Effective January 1, 2000, EMC was the workers’ compensation carrier.
EMG studies of the claimant in November 1997 revealed conditions consistent with carpal tunnel syndrome (CTS). A formal diagnosis of CTS was made in 1998. EMG studies on May 2, 2000 showed a worsening of the CTS. On November 21, 2001, the claimant underwent a right carpal tunnel release.
In an order dated December 31, 2001, the ALJ determined the claimant suffered work-related bilateral CTS. The ALJ also found the claimant was last injuriously exposed and suffered a substantial, permanent aggravation when ICNA was the insurer. Consequently, the ALJ held ICNA responsible for the occupational disease. The ALJ also ordered ICNA to pay the medical expenses previously incurred by the claimant with Concentra.
EMC and ICNA separately petitioned for review. A briefing schedule was established on May 2, 2002. On May 17, 2002, an extension was granted to June 12, 2002 for the filing of opening briefs.
Under § 8-43-301(5), C.R.S. 2002, an ALJ is only afforded 30 days from the date briefs are filed or the time for filing briefs has run to issue a supplemental order. If no supplemental order is issued during this period, the file must be transmitted to the Industrial Claim Appeals Office for review.
Here, the time for filing briefs expired July 2, 2002. Consequently, the supplemental order issued by the ALJ on August 15, 2002 is void for lack of jurisdiction, and we shall proceed to review the December 31 order.
I. A.
In seeking review of the December order, ICNA first contends the ALJ erroneously held them responsible for the occupational disease. We conclude this portion of the ALJ’s order is not currently subject to review.
Section 8-41-304(1), C.R.S. 2002, provides that liability for indemnity benefits due on account of an occupational disease is governed by the last injurious exposure rule. Monfort Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993). Specifically, the statute provides:
“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 to contribution from any prior employer or insurance carrier.”
Section 8-43-301(2), C.R.S. 2002, only allows us to review orders which require “any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” See Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). An order which determines the employer’s liability for indemnity benefits, but does not determine the amount of benefits is not an order requiring the payment of benefits. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) (order requiring the payment of benefits “to which the claimant may be entitled” was held to be interlocutory). Further, an order may be partially final and partially not final. Oxford Chemicals Inc., v. Richardson, supra.
This matter came before the ALJ for a full contest hearing. The ALJ determined the claimant suffered an occupational disease and was last injuriously exposed and suffered a substantial permanent aggravation while ICNA was the insurer. Further, the ALJ determined the claimant’s average weekly wage. However, the ALJ did not award or deny any specific temporary or permanent disability benefits and no specific benefits were requested. (Tr. p. 19). Under these circumstances, the ALJ’s determination that ICNA is responsible for the occupational disease is interlocutory and not subject to review. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
B.
ICNA also contends the ALJ erroneously held them responsible for medical benefits, including the cost of the CTS release surgery. We find no basis on which to disturb the ALJ’s award of medical benefits.
Initially, we conclude that review of this portion of the ALJ’s order is not inconsistent with our determination that review of ICNA’s liability for indemnity benefits is premature. There are different legal standards for awarding disability and medical benefits in occupational disease cases. See Royal Globe Insurance Co. Collins, 723 P.2d 731
(Colo. 1986). Consequently, the award of medical benefits is insufficient to render final the portion of the order which determines ICNA is liable for indemnity benefits. The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533
(Colo.App. 1997). This purpose would be thwarted if we were to review the liability determination prior to an award of indemnity or disability benefits.
In the context of § 8-41-304(1), the term “compensation” does not include “medical benefits.” Royal Globe Insurance Co. Collins, supra.
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 insurer “on the risk” when medical expenses are “incurred” is the carrier which insured the employer whose conditions of employment were the proximate cause of the need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637
(Colo.App. 2001); Rodriguez v. California Indemnity Insurance Co., (Colo.App. No. 99CA0475, October 21, 1999) (not selected for publication) (insurer on the risk at the time the claimant’s employment aggravated or accelerated occupational disease was liable for vocational rehabilitation expenses). It follows that 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. Because the cause of the need for treatment is a question of fact to be determined by the ALJ, the ALJ’s findings are governed by the substantial evidence standard. University Park Care Center v. Industrial Claim Appeals Office, supra.
The ICNA’s arguments notwithstanding, there is substantial medical evidence to support the ALJ’s determination that the claimant’s employment activities between October 1, 1997 and December 1999 caused the need for the medical treatment at Concentra. Dr. Raschberger opined the claimant was asymptomatic from the CTS in 1997, and therefore, did not carry the diagnosis of CTS at that time. However, by October 23, 1998, Dr. Aschberger recommended conservative treatment of the CTS. Further, by May 3, 1999, the claimant had developed paresthesias of the hands and digits and Dr. Raschberger therefore recommended treatment.
The ALJ’s determination that the need for medical treatment at Concentra was not caused by the claimant’s employment after January 2000, when EMC became the insurer is a plausible inference from Dr. Roth’s testimony. (Finding of Fact 8). Dr. Roth testified that given the severity of the disease process in 1999, the 4-month period of work between January 2000 and May 2000 was not a substantial contribution to the claimant’s condition. (Tr. pp. 66, 67). Further, Dr Roth stated that the claimant’s complaints of increased numbness and tingling after the imposition of medical restrictions in May 2000, supported his opinion that once a claimant reached a certain level of dysfunction, the symptoms progressed regardless of the activities. (Tr. pp. 69, 89). Based on Dr. Roth’s testimony, the ALJ reasonably inferred that ICNA failed to prove the claimant’s need for treatment was caused by the employment between January 2000 and May 2000. Thus, the ALJ did not err in holding ICNA responsible for the outstanding bills at Concentra.
However, the ALJ did not determine liability for the CTS surgery. Rather, the ALJ merely determined the surgery was reasonable and that the cost of surgery was “the financial responsibility of the carrier on the risk at the time such expenses were incurred.” (See Finding of Fact 17). Unlike the ALJ’s order requiring ICNA to pay the medical costs incurred by the claimant at Concentra, (see Finding of Fact 18), the ALJ did not determine which insurer was “on the risk” at the time of the surgery. (See Order par 3). Thus, the ALJ’s order is not a final order concerning liability for the CTS release surgery.
We also note that medical benefits are recoverable before any onset of disability. This is true because the need for medical treatment does not necessarily coincide with the onset of disability. See Leming v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0865, May 9, 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Accordingly, we do not consider ICNA’s contention that the ALJ erred in finding the claimant experienced the onset of disability in 1998.
II.
For its part, EMC requested the ALJ “clarify” the December order concerning liability for future medical benefits. The ALJ expressly reserved all issues not expressly resolved by the December order for future determination. (Order par. 7). It follows that the EMC’s contention that it should not be held liable for any future medical benefits is premature and not properly before us for review.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 31, 2001, is affirmed insofar as the ALJ ordered ICNA to pay for authorized medical treatment previously provided by Concentra.
IT IS FURTHER ORDERED that the petitions to review the ALJ’s order concerning liability for indemnity benefits, the CTS release surgery, and future medical benefits are dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party must serve a copy of thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe, Tower 3, Suite350, Denver, CO 80202.
Copies of this decision were mailed ______ February 10, 2003 __________to the following parties:
John Davis, 29721 E. 128th Ave., Commerce City, CO 80022
Human Resources/Personnel, The Hullinger Group/North American Truck Trailer, 4500 North Cliff, Sioux Falls, S.D. 57104
Insurance Company of North America, c/o Wes Johnson, ACE/ESIS, P.O. Box 911, Portland, OR 97207
Ginger Cook, Argonaut Insurance Co., 5690 DTC Blvd., #290 West, Englewood, CO 80111
Terri Lynn Vink, EMC Insurance Company, P.O. Box 441098, Aurora, CO 80044-1098
Erica West, Esq., 837 E. 17th Ave., #102, Denver, CO 80218 (For Claimant)
Richard A. Bovarnick, Esq. and Tiffany L. Scully, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents The Hullinger Group and Insurance Company of North America)
Jeffrey J. Cowman, Esq., 1899 Wynkoop St., #700, Denver, CO 80202 (For Respondents The Hullinger Group and Argonaut Insurance Company)
Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents The Hullinger Group/Volvo Trucks of Colorado and EMC Insurance Company)
BY: _______A. Hurtado___________