W.C. No. 4-146-751Industrial Claim Appeals Office.
July 26, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which denied their petition to suspend temporary disability benefits. We affirm.
The petition was argued to the ALJ on the following stipulated facts. The claimant suffered a compensable back injury in June 1992. The attending physician recommended physical therapy. The claimant also suffers from an abdominal hernia which predates the industrial injury, and was neither symptomatic nor required treatment prior to the industrial injury. The hernia impedes physical therapy, and therefore, physical therapy has been suspended until the claimant can afford hernia surgery.
Further, the record indicates that the respondents admitted liability for continuing temporary total disability benefits commencing June 12, 1992. The respondents argued that the claimant’s untreated hernia constitutes an intervening event which has severed the causal connection between the industrial injury and the claimant’s temporary disability, and therefore, sought an order from the ALJ which suspends temporary disability benefits until the claimant obtains treatment for the hernia.
The ALJ rejected the respondents’ argument. The ALJ determined that in view of the stipulated fact that the hernia is a pre-existing condition, the respondents are not entitled to suspend temporary disability benefits just because the hernia became symptomatic and precludes the claimant from continuing medical treatment for the industrial injury.
On review, the respondents contend that this claim is factually similar to Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986), and like Roe, the claimant’s disability is attributable to an intervening event. We conclude that Roe is factually distinguishable, and does not compel the conclusion sought by the respondents.
The claimant in Roe suffered a compensable lower back injury in March 1983 which rendered him temporarily and totally disabled. On April 6, 1983 the claimant suffered a neck injury in a non-industrial automobile accident. Vocational rehabilitation efforts, which began in September 1983, were suspended on March 13, 1994, when the claimant underwent surgery for the neck injury. The Roe court affirmed the suspension of temporary disability benefits from March 13, 1994 to June 25, 1994, when the claimant was released to return to the vocational rehabilitation program.
Unlike Roe, this claim does not involve a medical problem which aros after the industrial injury. See Zanandrie v. Castle Gardens Nursing Home (Colo.App. No. 92CA1406, October 7, 1993) (not selected for publication) (pregnancy after industrial injury which postponed surgery for industrial injury was intervening event). Further, the non-industrial injury in Roe was independently disabling during the period benefits were suspended. There is no similar contention in this claim. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986) (industrial disability must be “significant factor” in claimant’s disability); cf. Macias v. City and County of Denver (Colo.App. No. 92CA0793, February 25, 1993) (not selected for publication) (permanent total disability attributable to non-industrial disease where the disease was diagnosed after industrial injury and not aggravated by industrial injury). Rather, the claimant’s hernia condition merely impedes the claimant’s ability to engage in certain medical treatment necessitated by the industrial injury.
Moreover, we have previously stated that the fact that the pre-existing, non-industrial condition does not require treatment until after an industrial injury, does not, in and of itself, render the non-industrial condition an efficient intervening event. See Gonzales v. Christian Missionary Alliance, W.C. No. 4-002-274, October 14, 1994. I Gonzales the claimant suffered from a pre-existing heart condition which precluded her from undergoing foot surgery to treat her occupational disease. The heart condition was not independently disabling. Rather, it merely contributed to the claimant’s ongoing disability. Under these circumstances, we affirmed a determination that the heart condition did not sever the causal connection between the industrial injury and the claimant’s temporary disability.
This claim is factually similar to Gonzales. Therefore, we agree with the ALJ that the respondents are not entitled to suspend temporary disability benefits merely because the claimant’s pre-existing condition became symptomatic subsequent to the industrial injury.
Alternatively, the respondents argue that the claimant’s failure to undergo hernia surgery and failure to continue physical therapy constitutes an “injurious practice” which entitles them to suspend benefits under §8-43-304(3), C.R.S. (1994 Cum. Supp.). We disagree.
Insofar as pertinent, § 8-43-304(3) provides that:
“If any employee persists in any unsanitary or injurious practice which tends to imperil or retard recovery or refuses to submit to such medical or surgical treatment or vocational rehabilitation evaluation as is reasonably essential to promote recovery, the director shall have the discretion to reduce or suspend the compensation of any such injured employee.”
Because, § 8-43-304(3) is in the nature of an affirmative defense, the respondents bore the burden to prove that the claimant engaged in an “injurious practice.” Neodata Services v. Industrial Claim Appeals Office, 805 P.2d 1180 (Colo.App. 1991). Furthermore, the reduction or suspension of compensation due to an “injurious practice” is discretionary. Consequently, we may not interfere with the ALJ’s exercise of discretion unless it exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
Here, the stipulated facts indicate that the claimant’s sole reason for not engaging the physical therapy was the hernia, and that the sole reason the claimant did not undergo hernia surgery was a lack of money. We cannot say that the ALJ’s failure to reduce or suspend the claimant’s benefits under these circumstances, exceeds the bounds of reason. Compare Cortez v. Industrial Claim Appeals Office (Colo.App. No. 93CA1170, March 31, 1994) (temporary disability benefits suspended based upon claimant’s deliberate actions that resulted in expulsion from vocational rehabilitation program). Therefore, the ALJ did not abuse her discretion in failing to grant the respondents’ petition to suspend under §8-43-304(3).
The respondents’ remaining arguments are not persuasive. The issue before the ALJ was the respondents’ liability for temporary disability benefits during the disputed period, and not whether the claimant suffered a compensable hernia or whether the claimant is entitled to hernia surgery at the respondents’ expense. Cf. Merriman v. Industrial Commission, 210 P.2d 448 (Colo. 1949) (medical treatment for non-industrial condition which was necessary to cure the effects of the industrial injury is compensable); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990) (disability from the superimposition of an industrial injury on a pre-existing condition constitutes a compensable injury). Therefore, the ALJ was not required to determine whether the industrial injury aggravated the hernia.
As a result of our disposition we need not address the claimant’s appellate argument.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 13, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum.Supp.).
Copies of this decision were mailed July 26, 1995 to the following parties:
Terry L. Fugate 9100 Tejon St., Sp. 90, Federal Heights, CO 80221
Colorado Nitro Club, 112 Lawrence, Central City, CO 80427
Scott A. Meiklejohn, Esq., 1290 Broadway, #807, Denver, CO 80203 (For the Claimant)
Carolyn Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Thomas L. Kanan, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For the Respondents)
BY: _______________________