W.C. No. 4-606-010.Industrial Claim Appeals Office.
June 16, 2005.
FINAL ORDER
The claimant and the respondents seek review of a Corrected Order of Administrative Law Judge Friend (ALJ) which determined the claimant sustained a compensable occupational disease and denied certain medical benefits. The respondents contend the ALJ erred in finding the claimant’s foot condition was caused by a hazard peculiar to her employment and in declining to apportion liability for temporary disability and medical benefits. The claimant contends the ALJ erred in finding that a foot surgery was not performed by an authorized physician. We affirm.
The ALJ found the claimant was employed as a delivery driver. Because the claimant was right foot dominant, she would step out of her truck with the right foot. The step was sixteen inches above ground level. During the holiday season in November and December, the number of deliveries substantially increase, causing the claimant to leave the vehicle more often.
The ALJ found that the claimant had congenital foot problems which included high arches and “flexible hammer toes” on both feet. The claimant also had Morton’s toe, or a long second toe of the right foot.
The claimant testified that she had a history of foot pain dating back five years, but experienced particularly noticeable pain under her right second toe following the 2002 holiday season. The claimant first sought treatment for this condition in June 2003 and was provided with orthotics. In the December 2003 holiday season the claimant again experienced severe pain and sought treatment from the employer’s designated physicians at Arbor Occupational Medicine (Arbor). The Arbor physician, Dr. Mars, referred the claimant to Dr. Lundy, a foot surgeon who diagnosed a hammertoe deformity of the right second toe and recommended surgery. Dr. Mars reduced the claimant’s hours in December 2003, and took her completely off work on February 13, 2004.
The claimant alleged she sustained a compensable occupational disease of the right foot caused by stepping down from the truck, and she sought temporary partial and temporary total disability benefits as well as compensation for surgical repair of the hammertoe. Crediting the testimony of the claimant’s medical expert, Dr. Hughes, the ALJ found the claimant sustained a compensable occupational disease comprised of a “fixation over the right second hammertoe.” The ALJ determined that the occupational disease was caused by stepping down from the truck, an activity which aggravated the claimant’s pre-existing foot condition so as to cause the claimant’s temporary disability and accelerate the need for treatment in the form of surgery.
However, the ALJ denied the claimant’s request that the respondents be ordered to pay for the surgery. In this regard the ALJ found the claimant obtained surgery from Dr. Williams, a physician of her own choosing. Further, the ALJ found the claimant was not authorized to select Dr. Williams because treatment was never refused by any of the physicians authorized by the respondents.
I.
On review, the respondents contend the evidence does not support the ALJ’s finding that the claimant sustained a compensable occupational disease. Specifically, the respondents contend the evidence does not support the conclusion that the stepping off the vehicle caused the disease and the need for treatment. Rather, the respondents asset that the evidence establishes that the disease was caused by hazards to which the claimant was equally exposed outside of the employment including the pre-existing degenerative conditions of her feet, and walking and hiking. We disagree with this argument.
Section 8-40-201(14), C.R.S. 2004, defines an occupational disease as one which results directly from the conditions under which work was performed, is a natural incident of the work, can fairly be traced to the employment as a proximate cause, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.” The requirement that the hazard not be one to which the claimant was equally exposed outside of employment effects the “peculiar risk” test and serves to insure that the disease is occupational in origin. Anderson v. Brinkhoff, 899 P.2d 819, 822-823 (Colo. 1993). However, the statute does not require that the industrial hazard be the sole cause of the disease or aggravation. Rather the statute contemplates that the claimant is “entitled to recovery only if the hazards of employment cause, intensify or aggravate — to some reasonable degree — the disability for which compensation is sought.” Thus, the statute does not invite a weighing of exposure to various hazards, some occupational and some not, but insures that a disease results from “a hazard which is occupational in nature.” Id. at 824-825.
The question of whether a claimant has proven that a particular disease, or aggravation of a disease, was caused by a work-related hazard is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Thus, it is for the ALJ to resolve conflicts between medical experts, and to resolve any internal inconsistency which exists in the opinions of an individual physician. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the ALJ found the claimant proved that stepping down from the truck aggravated and accelerated the claimant’s pre-existing degenerative foot condition. The respondents’ assertion notwithstanding, this finding is amply supported by the testimony of Dr. Hughes, who opined that this conclusion is supported by the claimant’s history. As the ALJ noted, Dr. Hughes explained that stepping down from the truck exerted forces on the claimant’s right foot which were not present in ordinary walking and hiking. Dr. Hughes testified this fact may be deduced from the absence of a fixed hammertoe on the left foot which was not subjected to the hazard of stepping out of the truck but was subjected to the ordinary stresses of non-occupational walking and hiking. (Hughes Depo. Pp. 12-14, 33, 38). The opinion of Dr. Hughes is corroborated by that of Dr. Mars, the treating physician.
It is true, as the respondents argue, that Dr. Hughes stated that non-occupational factors including the pre-existing degenerative condition and hiking “gave rise to the condition which led to the surgery.” However, the statement that these circumstances played a role in the claimant’s disease process does not negate or contradict Dr. Hughes testimony, or the ALJ’s finding, that stepping down from the truck was the hazard which caused the disabling fixation of the second right toe and accelerated the need for surgery. (Hughes Depo. Pp. 16-18). The mere existence of a predisposing condition, or even the existence of an ongoing disease process, does not negate a finding that a hazard of the occupation has caused a compensable aggravation or acceleration of the disease. Anderson v. Brinkhoff, supra. For this reason we reject the respondents’ assertions that stepping down from the truck cannot be the cause of an occupational disease, and that the evidence does not support such a finding here.
II.
The respondents next contend the ALJ erred in failing to apportion the claimant’s temporary disability and medical benefits based on the pre-existing conditions and the occupational disease. The respondents assert that the apportionment is mandated by Anderson v. Brinkhoff, supra, and that the ALJ failed to recognize this possibility. We disagree.
Anderson v. Brinkhoff, permits apportionment where occupational exposure is not a necessary precondition to the development of a disease. In cases of multiple causes the claimant suffers a compensable occupational disease only to the extent that the “occupational exposure contributed to the disability.” 859 P.2d at 825. Here the ALJ found on substantial evidence, including the testimony of Dr. Hughes, that the occupational exposure was the sole cause of the disabling aggravation (formation of rigid hammertoe on right second toe) and acceleration of the need for treatment (surgery). Contrary to respondents’ argument this is not a case like Anderson v. Brinkhoff where the disease process was independently disabling before the industrial aggravation, nor is it a case where surgery was a treatment which was a predictable consequence of the claimant’s condition absent the industrial acceleration of the disease process. Cf. Martin v. Montrose Memorial Hospital, W.C. No. 4-348-316 (July 10, 1998); Simmons v. WCHS of Colorado, W.C. No. 4-222-793
(November 21, 1995); Martin v. Finzer Business Systems, Inc., W.C. No. 4-144-464 (June 10, 1994), aff’d., Finzer Business Systems v. Industrial Claim Appeals Office, (Colo.App. 94CA1690, May 18, 1995) (not selected for publication).
We disagree with the respondents’ contention that the ALJ’s citation o University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637
(Colo.App. 2001), demonstrates that the ALJ failed to recognize the applicability of Anderson v. Brinkhoff to apportionment in this occupational disease case. Indeed, the ALJ’s order expressly cite Anderson. Moreover, the ALJ’s finding that the claimant’s pre-existing foot condition did not contribute to the claimant’s temporary disability and need for medical treatment reflects recognition of and proper application of the apportionment principles discussed in Anderson.
III.
The claimant contends the ALJ erred in denying the cost of the surgery performed by Dr. Williams, the physician selected by the claimant. In this regard, the ALJ found that Dr. Mars and Dr. Lundy were authorized physicians; and even though the respondents contested liability for the surgery none of the authorized physicians refused to treat the claimant for non-medical reasons. Therefore, the ALJ found that Dr. Williams was not authorized.
The respondents have the right to select the authorized treating physician (ATP) in the first instance. Section 8-43-404(5)(a), C.R.S. 2004. Once selected the ATP may make authorized referrals in the ordinary course of care, but the claimant may not independently retain additional physicians without procuring permission from the insurer or the ALJ. If the claimant does so, the treatment provide by such personal physicians is not compensable. Moreover, the fact that the respondents contest liability does not negate their right to designate the ATP. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Of course, the respondents must designate a physician willing to treat the claimant based on the physician’s medical judgment and without regard to non-medical issues such as the probability of receiving payment in cases where the respondents contest liability. If the physician selected refuses treatment for non-medical reasons, and the respondents fail to appoint a willing ATP after notice of the refusal to treat, the right of selection passes to the claimant. The question of whether there has been a refusal to treat for non-medical reasons is one of fact for determination by the ALJ. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Medina v. La Jara Potato Growers, W.C. No. 4-128-326 (June 1, 1998).
Here, the ALJ found the claimant did not prove that any ATP refused to treat for non-medical reasons. Admittedly, there is some evidence in the record from which such an inference might be drawn, including March 29 and 30, 2004, notations in the Arbor medical records stating that the insurer has taken a “stance of total denial” of the claim and nothing “will be paid for” after “this point.” Therefore, Dr. Mars directed that the “chart should be filed away,” and the case was “closed by insurance.”
However, the claimant stated that she never returned to Dr. Mars and Dr. Lundy after the insurer declared its intention to deny the claim. Moreover, the claimant stated that she decided to obtain surgery from her personal physician “because the whole thing was dragging out” and she wished to heal and get back to work. (Tr. Pp. 20-22, 45-46, 53). From this evidence the ALJ could plausibly infer the claimant never ascertained whether the physicians selected by the respondents were willing to treat her without regard to the outcome of the pending litigation, but instead selected a personal physician without obtaining approval from the respondents or an ALJ. Thus substantial, albeit conflicting, evidence supports the ALJ’s finding that the right of selection never passed to the claimant, and that finding must be upheld on review. Lutz v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated January 24, 2005, is affirmed.
Ellen E. Gale, Berthoud, CO, United Parcel Service, Commerce City, CO, Liberty Mutual Insurance Company, Irving, TX, W.M. Busch, Jr., Esq., Loveland, CO, (For Claimant).
Robert A. Weinberger, Esq., Denver, CO, (For Respondents).