W.C. No. 4-440-444Industrial Claim Appeals Office.
May 8, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) insofar as it determined the claimant sustained a compensable occupational disease, and determined that certain physicians are authorized to treat the disease. The respondents contend the evidence does not support the finding that the claimant’s back condition was caused by a disease arising out of and in the course of employment. The respondents also argue the treatment rendered by the physicians selected by the claimant is not authorized because the employer “pre-designated” physicians to treat workers’ compensation injuries. We affirm the order with respect to compensability, and dismiss the petition to review without prejudice as it pertains to the identity of the authorized providers.
The claimant was employed as a licensed practical nurse at the employer’s health care facility. This job required the claimant to lift approximately eleven patients every two hours during 12 hour shifts. The patients weighed between 80 and 200 pounds.
In June 1999, the claimant began to experience mid-back pain, although she could not associate the pain with any particular incident. The claimant was examined by her personal physician, Dr. Villalon, who referred her to Dr. Danylchuk. Dr. Danylchuk referred the claimant to Dr. Hess, who performed on MRI. The MRI revealed degenerative changes of the thoracic spine including disc herniations at T7-T8 and T8-T9.
The ALJ credited the claimant’s testimony that her back pain was associated with the heavy lifting she at performed work. Further, the ALJ found the claimant’s testimony was corroborated by the medical evidence. Consequently, the ALJ concluded the claimant proved a compensable occupational disease. The ALJ rejected the respondents’ argument that Dr. Villalon and his referrals are not authorized treating physicians. In support of this determination the ALJ found that when the claimant first reported the disease to her supervisor on September 3, 1999, and again on September 30, 1999, the claimant was not referred to an authorized provider.
I.
On review, the respondents argue the record does not support the ALJ’s finding the claimant proved a compensable occupational disease caused by the conditions of her employment. The respondents assert the medical evidence concerning causation was “speculative,” and the claimant presented no credible or persuasive evidence of causation. According to the respondents, the evidence compels the conclusion the claimant’s condition was attributable to preexisting degenerative spinal disease. We disagree.
The claimant was required to prove the existence of an occupational disease directly and proximately caused by the employment or working conditions. Section 8-40-201(14), C.R.S. 2000; § 8-41-301(1)(c), C.R.S. 2000; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant proved causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Further, the existence of a preexisting condition does not preclude the finding of a compensable occupational disease if the evidence establishes the conditions of employment caused, intensified, or aggravated, to some reasonable degree, the disability for which compensation is sought Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
Because the issue is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We specifically note that a claimant is not required to produce medical evidence of causation where circumstantial evidence permits an inference that the claimant’s disease was caused by the conditions of employment. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. 1990). However, where medical evidence concerning the issue of causation is presented, its weight and credibility are matters to be determined by the ALJ. Rockwell International v. Turnbull, supra.
The respondents’ argument notwithstanding, substantial evidence supports the ALJ’s finding of a compensable occupational disease. The claimant described the frequent, heavy lifting required by her job, and testified that she associated her symptoms with lifting. (Tr. p. 42). A coworker corroborated the claimant’s testimony in this regard. (Tr. pp. 85-86). Although the claimant had a history of lumbosacral disc disease, she stated the mid-back symptoms beginning in June 1999 were different than any she experienced before. (Tr. p. 22).
Further, substantial evidence supports the ALJ’s finding that medical evidence corroborates the claimant’s testimony. Although Dr. Moll did not render a “definitive” opinion concerning causation, he testified that heavy lifting could have contributed to the claimant’s condition. Moreover, he stated that, in the absence of a specific trauma, lifting was the most likely cause of the claimant’s back pain. (Moll depo. pp. 32-33). The respondents attempted to convince the ALJ that the claimant’s thoracic spinal problem was the product of a preexisting condition. However, a CT scan performed in December 1993 revealed pathology of the lumbar spine, but no pathology of the thoracic spine. Finally, when the claimant’s thoracic condition was diagnosed 1999, Dr. Danylchuk imposed specific lifting restrictions. Thus, taken in its totality, the evidence supports the order. Wal-Mart Stores, Inc., v. Industrial Claims Office, supra.
We disagree with the respondents that Finding of Fact 5 should be read to mean the ALJ did not recognize the respondents’ defense based on the alleged preexisting condition. The ALJ was merely ruling out the existence of potential non-industrial activities (hazards) which could have been responsible for or contributed to the claimant’s condition. The finding is not addressed to the alleged preexisting condition. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ not held to a crystalline standard in expressing findings of fact and conclusions of law). Neither did the ALJ err because the claimant was “equally exposed” to the hazards of her disease outside of employment. Indeed, the ALJ explicitly found the claimant’s disease was caused by the conditions of her employment. Thus, to the extent the respondents wished to demonstrate the contribution of non-industrial hazards as a basis for apportionment, the burden was on them to do so. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
II.
The respondents next contend the ALJ’s order was erroneous insofar as it determined that Dr.Villalon, Dr. Danylchuk and Dr. Hess are authorized to treat the claimant. We dismiss this portion of the petition to review without prejudice.
Section 8-43-301(2), C.R.S. 2000, provides that a party dissatisfied with an order may file a petition to review if the order “requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” The courts have repeatedly held that orders which do not meet the statutory criteria are interlocutory and not subject to immediate review. See Reed v. Industrial Claim Appeals Office, 13 P.2d 810
(Colo.App. 2000). Inherent in this statutory scheme is the principle that the amount of benefits must be determined following a finding of liability before the order becomes reviewable. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). Further, orders may be partially final and reviewable, and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989).
In light of these principles, we have previously held that an order which determines a physician is “authorized” to treat the claimant, but does not order the payment of specific medical benefits, is not final and reviewable. The rationale for this conclusion is that authorization refers to a physician’s legal authority to treat, but is not itself a “medical benefit.” See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995); Fernandez v. City and County of Denver, W.C. No. 4-122-784 (February 7, 1996).
Here, the claimant raised the issue of “medical benefits,” and the respondents raised an argument concerning authorization. The ALJ’s order determines that Dr. Villalon, Dr. Danylchuk and Dr. Hess are “authorized,” but does not order the respondents to pay for any specific medical treatment rendered by these physicians. Further, the ALJ’s order reserves all issues not determined in the order. Consequently, the order is not final and reviewable because the respondents have not been ordered to pay for specific medical treatment, and the reasonableness and necessity of treatments provided by the disputed physicians has not yet been determined. In this regard, we note the claimant had the burden of proof to establish the reasonableness and necessity for specific treatment. See Snyder v. Industrial Commission, 942 P.2d 1337
(Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 31, 2000, is affirmed insofar as it determined the claimant sustained a compensable injury and ordered the respondents to pay temporary partial disability benefits.
IT IS FURTHER ORDERED that the respondents’ petition to review the order of May 31, 2000, is dismissed without prejudice insofar as it contests the ALJ’s determination that Dr. Villalon, Dr. Danylchuk and Dr. Hess are authorized to treat the claimant.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 May 8, 2001 to the following parties:
Irene Jeppsen, 17 County Road 592, Walsenburg, CO 81089
Lori McGraw, Human Resource Dept., Huerfano Medical Center, 23500 Highway 160, Walsenburg, CO 81089
Colorado Hospital Association Trust, Sharon Thompson, Claims Adjuster, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
James M. Anderson, Esq., 559 E. Pikes Peak Ave., #212, Colorado Springs, CO 80903 (For Claimant)
Clyde E. Hook, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy