W.C. No. 4-119-444Industrial Claim Appeals Office.
September 16, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ), which ordered them to pay fifty percent of the claimant’s medical benefits. We affirm.
The ALJ found that the claimant sustained a compensable low back injury, while employed by respondent Don Massey Cadillac (Massey), on December 13, 1991. This injury resulted in a brief period of temporary disability, and then the claimant was released to return to work for Massey. The claim for this injury was closed in April 1992.
Nevertheless, the claimant testified that he continued to suffer symptoms of low back pain which “waxed and waned.” There is evidence that the claimant sometimes sought medical treatment for his back, including at least one emergency room visit.
In September 1994, the claimant was employed by Mike Naughton Ford (Naughton). On or about September 2, the claimant experienced increased back symptoms after heavy lifting. The claimant obtained treatment and was diagnosed with a “disc/disc herniation condition.” He filed a petition to reopen the claim against Massey, and also sought benefits from Naughton and other intervening employers.
The ALJ found that the claimant’s December 13, 1991 injury had worsened, and therefore, there was a change of condition justifying reopening of that claim. Further, the ALJ concluded that the claimant sustained a new injury in September 1994 while employed by Naughton. Finally, relying on the opinions of Dr. Cook, the ALJ found that the claimant’s need for medical benefits is fifty percent attributable to the worsening of the 1991 injury, and fifty percent attributable to the 1994 injury. Accordingly, the ALJ apportioned medical benefits and ordered Massey and its insurer to pay fifty percent.
On review, the respondents contend that the ALJ’s apportionment of medical benefits is contrary to law and unsupported by substantial evidence. Specifically, the respondents argue that there is no legal authority justifying apportionment of medical benefits under the circumstances present in this case. In any event, the respondents assert that Dr. Cook’s opinion is insufficient to support apportionment. We reject these arguments.
It is true that there is no express statutory authority permitting apportionment of medical benefits based on the continuing effects of two different injuries. However, in State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985), the Court of Appeals sanctioned apportionment of temporary disability benefits where the Industrial Commission determined that the claimant’s temporary disability was attributable to the worsening of two separate back injuries. In that case, the court stated the following:
“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.”
Subsequently, we applied this rationale to medical benefits in the case of Watts v. Eben Ezer Lutheran Care Center,
W.C. No. 3-905-560 (February 14, 1994). Relying on State Compensation Insurance Fund v. Industrial Commission, supra, we stated that, “if there is substantial evidence to support a factual determination” that a claimant’s need for treatment is attributable to more than one injury, an order apportioning benefits must be upheld.
So far as we know, no case, including Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), has criticized or overruled State Compensation Insurance Fund v. Industrial Commission. Consequently, we are bound by that decision and we find no error in the ALJ’s decision to apportion medical benefits. C.A.R. 35(f).
The respondents also argue that the evidence is insufficient to support the ALJ’s ruling that the claimant’s need for medical treatment is the result of both the 1991 and 1994 injuries. We reject this argument.
In this regard, we note that causation is generally a question of fact for determination by the ALJ. State Compensation Insurance Fund v. Industrial Commission, supra; F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, it is the ALJ’s province to assess the weight and credibility of the medical evidence, as well as other evidence pertaining to causation Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ arguments notwithstanding, Dr. Cook’s report provides an ample basis for apportioning medical benefits in this case. In his report, Dr. Cook stated that he believed that the claimant “has experienced two specific injuries.” Further, Dr. Cook opined that medical records from July 1994 suggest that the claimant had “low back pain with right radiculopathy,” and this “may have been an initial hint that he was starting to become symptomatic regarding his right lumbar disc herniation.” However, Dr. Cook went on to state that after the September 1994 injury the claimant’s “degenerative changes became grossly symptomatic.” Thus, Dr. Cook opined that fifty percent of the claimant’s current “medical condition” is attributable to the 1991 injury, and fifty percent to the 1994 injury. Cf. Askew v. Industrial Claim appeals Office, supra
(apportionment is proper only if a prior condition has been sufficiently identified, treated, or evaluated to be rated as a contributing factor).
Moreover, Dr. Cook’s apportionment is supported by the claimant’s testimony. The claimant testified that he had ongoing symptoms after the 1991 injury, and that these symptoms occasionally impaired his ability to work. However, he was actually worse after the 1994 incident.
Under these circumstances, we find substantial evidence in the record to support the ALJ’s apportionment of medical treatment. Since the order is supported by substantial evidence, we must uphold it. The mere fact that some evidence might have supported contrary findings and conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed September 16, 1997 to the following parties:
John D. Hays, 204 W. Tonk, Gillette, WY 82716
Don Massey Cadillac, Inc., P.O. Box 440638, Aurora, CO 80044-0638
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Diane M. Russini, Esq., 3773 Cherry Creek North Dr., Ste. 940W, Denver, CO 80209 (For the Claimant)
Sanda L. King, Esq., 950 S. Cherry St., #1400, Denver, CO 80222 (For the Claimant)
David L. Smith, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For the Respondents)
By: _______________________________