W.C. No. 4-544-180.Industrial Claim Appeals Office.
August 6, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which apportioned liability for medical and temporary disability benefits. We affirm.
The ALJ found the claimant suffered an accidental injury to her right knee on March 23, 2002, which aggravated a preexisting condition, and that the claimant has been unable to work since June 20, 2002, due to ongoing symptoms in the knee. The ALJ further found the claimant’s knee condition has resulted from the combined effects of a prior work-related injury, the 2002 injury, and the natural aging process, and that the claimant’s need for medical treatment results from the combination of those factors. (Finding of Fact 8).
The claimant previously had been told she would inevitably require a total knee replacement to treat the preexisting condition, and the ALJ found the March 2002 injury only “accelerated” the “time frame in which the claimant had to face the decision of undergoing surgical treatment.” Crediting the opinions of Dr. Smith, the ALJ found that the claimant’s preexisting condition accounts for 75 percent of the claimant’s disability and need for medical treatment and the March 2002 injury accounts for the remaining 25 percent. Therefore, relying on University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001), the ALJ ordered the respondents to pay 25 percent of the medical treatment for the right knee and temporary disability benefits.
The claimant’s petition to review the order contains general allegations of error. Section 8-43-301(8), C.R.S. 2002. The claimant also alleged the ALJ’s apportionment of temporary disability and medical benefits is “without a proper basis.” We reject these arguments.
Initially, we note the ALJ transmitted the record to us on June 10, 2003, and the transmittal letter contains a hand-written notation that “no brief in support” was filed. We received the record on June 12, 2003, and on June 13 we received a Brief in Support of the Petition to Review dated June 9. The Brief was mailed to the Division of Administrative Hearings on June 10, 2003.
Section 8-43-301(4), C.R.S. 2002, provides that:
“[W]hen the record upon which a petition to review has been filed is complete, the parties shall be notified in writing. The petitioner shall have twenty days after the date of the certificate of mailing of the notice to file a brief in support of the petition. The opposing parties shall have twenty days after the date of the certificate of mailing of the petitioners’ brief to file briefs in opposition thereto.”
A notice of briefing schedule was issued on April 30, 2003, and there is no evidence the claimant requested or was granted an extension of time to file a brief in support of the petition to review. Consequently, the claimant’s brief in support of the petition to review was due no later than Tuesday, May 20, 2003. It follows that the claimant’s June 9 brief is untimely. Under these circumstances, we have not considered the brief.
Under § 8-43-301(8), C.R.S. 2002, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
Here, the ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ’s findings are supported by substantial evidence in the record and the order of apportionment is consistent with the applicable law.
The fact that the claimant suffers from a preexisting condition does not disqualify the claimant from receiving workers’ compensation benefits. Rather, where the industrial injury “aggravates, accelerates, or combines with” a preexisting disease or infirmity to produce the need for treatment, the treatment is a compensable consequence of the industrial injury. See H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990). Although there is no express statutory authority for the apportionment of temporary disability and medical benefits, the appellate courts have held that apportionment is proper where the claimant’s condition is caused by successive industrial injuries and both injuries contribute to the disability and need for additional medical treatment. See University Park Care Center v. Industrial Claim Appeals Office, supra; State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985).
The claimant in University Park sustained a compensable injury in 1991, and continued to suffer back and leg pain from the injury. Then in 1999 the claimant suffered an injury which aggravated that condition. As a result, surgery was recommended and she was removed from work. An ALJ found the previous injury and the 1999 injury equally contributed to the disability and need for surgery. Under these circumstances, the court upheld the apportionment of liability equally between the insurers for the 1991 and 1999 injuries.
Here, as in University Park, the ALJ found the claimant’s disability and need for medical treatment is the combined result of successive industrial injuries. Although the second injury to the claimant i University Park was in the nature of an occupational disease, that factual distinction is immaterial. In upholding apportionment, the court in University Park relied on State Compensation Insurance Fund v. Industrial Commission, supra. In that case, the court upheld the apportionment of liability between two employers and their insurers where the claimant suffered successive industrial accidents that injured his back. The following language from State Compensation Insurance Fund is instructive:
“We recognize that under the `full responsibility’ rule, an employer who hires a partially disabled worker is responsible for the entire disability award if the worker suffers a subsequent injury and is declared permanently and totally disabled. [citation omitted]. However, the full responsibility rule does not relieve an employer or its insurance carrier from all liability for injuries sustained by an employee because the employee is subsequently injured in another accident and because the employee is not permanently and totally disabled.” (697 P.2d at 809).
In State Compensation Insurance Fund, the claimant’s temporary disability was found to be causally related to the injuries from both industrial accidents. Therefore, State Compensation Insurance Fund is authority for the apportionment of liability between successive injuries from industrial accidents.
Finally, we are mindful that unlike the circumstances in University Park and State Compensation Insurance Fund, the employer and insurer for the claimant’s prior industrial injury were not parties to the claim. As a result, the ALJ’s order does not obligate the prior insurer to assume any liability for the claimant’s temporary disability and medical benefits. However, nothing in University Park nor State Compensation Insurance Fund requires that the prior employer and its insurer must be a party before liability may be apportioned.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 23, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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. 2002. 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 August 6, 2003 to the following parties:
Margaret L. Duncan, 1901 12th St., Greeley, CO 80631
Louise Bates, Mariner Post Acute Network d/b/a Garden Square at Westlake, 3151 W. 20th St., Greeley, CO 80634
American Home Assurance, c/o Rusty Pinckney, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado