W.C. No. 4-256-973Industrial Claim Appeals Office.
June 6, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which required them to pay medical benefits. We affirm.
On June 8, 1995, the claimant suffered a work-related sprain/strain injury to his back. The respondents admitted liability for temporary total disability and medical benefits. Despite treatment the claimant suffered continuing back pain. Between June 29, 1995, and July 14, 1995, the claimant was hospitalized for testing to determine the cause of his intractable back pain. Dr. Badzinski performed a transesophageal echocardiogram which produced findings consistent with a diagnosis of “endocarditis,” which is essentially a bacterial induced inflammation of the linings of the heart. Following a successful course of treatment for endocarditis, the claimant underwent physical therapy for the back injury.
On July 29, 1996 Dr. Badzinski responded to an inquiry from claimant’s counsel concerning the causal relation between the claimant’s back injury and the endocarditis treatment in which he stated:
“This is complicated. [The claimant’s] back `injury’ either was osteomyelitis or helped to bring his symptoms to the surface. My TX was for his endocarditis which probably seeded his L3 vertebra. In that sense, it was necessary for his back problem.”
Claimant’s counsel made a similar inquiry of Dr. Cobb who treated the endocarditis after the claimant’s hospitalization. In a letter dated August 6, 1996 Dr. Cobb stated that the claimant had “an aortic value endocarditis” secondary to a bacterial organism called “Streptococcus mutans.” Dr. Cobbs also opined that:
“The relation of his subsequent back symptoms was that of seeding his back area with bacteria that were essentially constantly present in his blood stream from this infected heart value. It is known that anatomic areas of previous or concomitant injury, such as perhaps his back, are more likely to be seeded with bacteremia than are other areas of the body. Our imaging studies would suggest that [the claimant] seeded the posterior inferior portion of the L-3 vertebral body with this organism. In short [the claimant’s] back injury and damage may have predisposed him to the subsequent back infection from his infected heart valve for which my therapy was necessary for cure.”
Crediting the opinions of Dr. Badzinski and Dr. Cobb, the ALJ found that the endocarditis increased the severity of the claimant’s back strain by “seeding” in the injured area of the back. The ALJ further found that to cure or relieve the claimant from the effects of the back injury, it was necessary to treat the endocarditis. Therefore, the ALJ determined that the claimant sustained his burden to prove the compensable nature of his endocarditis treatment, and ordered the respondents to pay for the claimant’s hospitalization and intravenous antibiotic treatment of the endocarditis.
On review, the respondents contend that the claimant failed to prove that the endocarditis treatment was “in fact” caused by the industrial injury, and was proximately caused by the industrial injury, as a matter of “ultimate fact”. Therefore, they argue that the ALJ erroneously ordered them to pay for treatment of the endocarditis. We perceive no error.
Contrary to the respondents’ argument, the applicable law does not distinguish between “ultimate facts” and “evidentiary facts.” That distinction was eliminated when the General Assembly abolished the former Industrial Commission and created the Industrial Claim Appeals Panel. See May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Therefore, we reject the respondents’ statement of the applicable legal standard.
Section 8-42-101(1)(a), C.R.S. (1996 Cum. Supp.), requires the respondents to pay for medical treatment which is reasonably necessary to “cure and relieve” the claimant from the effects of the industrial injury. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). Consequently, compensability of the endocarditis treatment is dependent on proof that the treatment was reasonably necessary to cure and relieve the claimant from the effects of the back strain. See Snyder v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0679, February 6, 1997).
Moreover, assuming that the endocarditis was not caused by the industrial injury, the compensable nature of the claimant’s endocarditis treatment was not dependent on proof that the back strain “aggravated” the endocarditis. To the contrary, treatment of a non-industrial condition which is necessary to treat an industrial injury may be compensable. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). This is true even if the disputed treatment is primarily designed to relieve the effects of the non-industrial condition. Merriman v. Industrial Commission, 210 P.2d at 450; Perez v. Monfort, Inc., W.C. No. 4-175-884, May 9, 1994 (treatment for osteoporosis reasonable and necessary for claimant to recover from work-related thoracic spine injury).
Furthermore, the question of whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ. Consequently, the ALJ’s determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
According to Dr. Badzinski and Dr. Cobb the bacteria which caused the endocarditis seeded in the claimant’s back, and caused the claimant to experience back pain which he would not have suffered from the industrial injury alone. Therefore, their opinions support the conclusion that it was necessary to eliminate the pain caused by the endocarditis before the claimant could be relieved of the effects of the industrial injury. Under these circumstances, the opinions of Dr. Badzinski and Dr. Cobb constitute substantial evidence to support the ALJ’s determination that the endocarditis treatment was reasonably necessary to cure or relieve the claimant from the effects of the industrial injury. Further, the ALJ’s findings support his order.
Based upon our disposition it is unnecessary to consider whether the ALJ’s order is also supported by H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Therefore, we do not address the respondents’ arguments that the ALJ erred in finding that the claim is analogous to the facts in H H Warehouse v. Vicory, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 14, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 6, 1997 to the following parties:
John P. Flynn, 1896 Hwy. 65, Cedaredge, CO 81413
M.A.G. Mining, Inc., P.O. Box 1119, Paonia, CO 81428-1119
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: _______________________________