W.C. No. 4-373-188Industrial Claim Appeals Office.
December 14, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant suffered a compensable occupational disease and awarded workers’ compensation benefits. We affirm.
From August 1989 to March 12, 1998, the claimant was employed as a full-time automotive technician for Phil Long Ford doing business as Academy Ford (Academy Ford). The ALJ found the claimant’s job duties required repetitive, heavy work. A job safety analysis described the job as requiring constant standing and bending, frequent kneeling, occasional crawling, overhead work, and lifting weights up to 100 pounds. The ALJ also found that 90 percent of the work was performed overhead.
The claimant testified that in the summer of 1996 he began experiencing pain in his left hip, right knee and right shoulder. On April 9, 1997, the claimant underwent arthroscopic surgery on his right knee. On October 9, 1997, the claimant underwent a total left hip replacement by Dr. Jinkins, and was removed from work. Dr. Jinkins also diagnosed a subacromial impingement syndrome in the right shoulder with a chronic rotator cuff tear, which he surgically repaired on December 22, 1997.
Dr. Jinkins attributed the claimant’s right shoulder problems to his employment activities and opined that the claimant’s work activities accelerated and aggravated the claimant’s pre-existing arthritis in the right knee and left hip. Crediting the claimant’s testimony and the opinions of Dr. Jinkins the ALJ found the claimant sustained an occupational disease which affected his right knee, left hip, and right shoulder. Furthermore, the ALJ found that on October 7, 1997, the claimant left work on due to the occupational disease and that he has not been released to return to work. Therefore, the ALJ awarded temporary total disability benefits commencing October 7, 1997. In so doing, the ALJ denied the respondents’ request for a late reporting penalty.
The ALJ also found the respondents failed to designate a treating physician after the claimant reported the injury. Therefore, the ALJ determined that the right of selection passed to the claimant, who elected to treat with Dr. Jinkins. Moreover, the ALJ found that Dr. Jinkins’ treatment was reasonable and necessary to cure or relieve the effects of the occupational disease, and therefore, the ALJ ordered the respondents to pay for Dr. Jinkins’ treatment.
The respondents’ Petition to Review contains general allegations of error. The respondents also allege the ALJ’s findings of fact do not support a conclusion the claimant proved a compensable occupational disease arising out of his employment for Academy Ford. Further, the respondents contend the claimant failed to prove he suffered a “disability,” and the ALJ erred in finding the respondents failed to tender the services of a treating physician.
However, the respondents did not file a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986).
An occupational disease is a disease which results directly from the conditions under which the claimant performs his employment, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.” Section 8-40-201(14), C.R.S. 1999; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, an occupational disease may arise from the industrial aggravation of a preexisting condition which disables the claimant from performing his regular employment. Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993); H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990).
The respondents’ general allegations of error have been considered and are without merit. The ALJ’s findings are sufficient to permit appellate review. The findings also support the conclusion the claimant proved a disabling occupational disease. The ALJ determined that the claimant’s lost time from work was the direct result of the industrial aggravation of his pre-existing arthritis, and that the respondents failed to prove the claimant’s disability was caused by a hazard to which the claimant was equally exposed outside of employment. These findings are supported by substantial evidence in the record and, therefore, must be upheld.
We also reject the respondents’ contention the ALJ erroneously found that they failed to designate a treating physician. Section 8-43-404(5)(a), C.R.S. 1999, provides in pertinent part that:
`the employer or insurer has the right in the first instance to select the physician who attends said injured employee. If the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor.”
In Broadmoor Hotel v. Industrial Claim Appeals Office
(Colo.App. No. 92CA1635, May 27, 1993) (not selected for publication), the court held that the employer’s right of selection must be exercised “at the time of the injury.” The court also concluded that the pre-designation of an authorized medical facility by use of a signed form or by written notice posted at the employer’s premises was not a sufficient tender of the services of a physician “at the time of the injury,” where the injured worker did not recall signing the document or seeing the posted notice at the employer’s premises, and the employer did not tender the services of a “physician” upon notice of the worker’s industrial injury.
The sufficiency of an employer’s pre-injury designation is a question of fact to be determined by the ALJ based upon the individual circumstances of the case. Stough v. Wood Recovery Systems, W.C. No. 4-210-391 (March 4, 1996); Jones v. Weld County Government, W.C. No. 4-176-234, (December 8, 1994) Trujillo v. Oppenheimer Management Group, W.C. No. 4-143-750, (August 9, 1993). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. The substantial evidence standard requires that we view the evidence in the light most favorable to the prevailing party, that we accept the ALJ’s resolution of conflicts in the evidence, and that we uphold plausible inferences drawn by the ALJ from the record. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, we may not disturb the ALJ’s assessment of the probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The claimant testified that before 1996 he knew Dr. Polanco and Health Quest were the designated providers for all work-related injuries at Academy Ford. (Tr. October 5, 1998, p. 67). However, the claimant did not testify concerning his knowledge of the designated provider in 1998, and denied being referred to a particular physician to treat the occupational disease. (Tr. October 5, 1998, p. 50). Under these circumstances, the ALJ could, and did, reasonably infer that the employer’s pre-designation was insufficient to relieve the employer from tendering the services of a physician “at the time of the injury.”
Moreover, the record supports the ALJ’s finding that the respondents did not designate a treating physician after the claimant’s verbal injury report on March 10, 1998. Consequently, the ALJ did not err in finding that the right of selection passed to the claimant who selected Dr. Jinkins to treat the injuries See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987) (where employer failed to designate a physician and the claimant selected her own physician, employer could not “recapture” the right of first selection).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 23, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 14, 1999 to the following parties:
Patrick Park, 1103 Norwood, Colorado Springs, CO 80906
Phil Long Ford d/b/a Academy Ford, P.O. Box 40, Colorado Springs, CO 80901-0040
Academy, LLC, 175 N. Academy Blvd., Colorado Springs, CO 80909-6553
Universal Underwriters Group, Attn: Lucy Johnson, 6400 S. Fiddlers Green Cir., #1180, Englewood, CO 80111
Kathleen W. Robinson, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
Timothy L. Nemechek, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy