W.C. Nos. 4-615-226 4-788-086.Industrial Claim Appeals Office.
December 15, 2010.
ORDER OF REMAND
The respondents K C RV Camping World (employer) and Arch Insurance Company (Arch) seek review of an order of Administrative Law Judge Harr (ALJ) dated July 9, 2010, that found the claimant sustained a compensable occupational disease and ordered Arch to pay for medical treatment and temporary total disability (TTD) benefits. We set the order aside and remand for entry of a new order.
The claimant worked for the employer as an RV Technician during the relevant period of time. On May 14, 2004 the claimant sustained an admitted industrial injury to his lower back which is identified as W.C. 4-615-226 (2004 injury). The employer’s insurer at the time was Pinnacol and it filed a Final Admission of Liaiblity (FAL) which was not objected to and the claim closed by operation of law in 2004.
The claimant returned to work for the employer following the 2004 injury. The claimant’s back condition worsened in 2007 and he could not longer stand the pain by September of 2008. The employer’s insurer at this time was Arch Insurance. The claimant eventually underwent surgery. This claim is identified as W.C. 4-788-086 and compensability was denied by Arch Insurance (2007 injury).
The ALJ determined that the claimant showed that his work activity aggravated, accelerated, or combined with his underlying degenerative disk disease process to produce the need for medical treatment and surgery in 2008. The ALJ concluded that the claimant sustained a compensable occupational disease type injury involving his lower
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back, which caused the need for medical treatment on September 3, 2008. The ALJ ordered Arch to pay for certain medical treatment and TTD benefits from September 14, 2008 and ongoing. Arch appeals.
Arch contends that the ALJ erred by failing to address a causation defense it raised. Arch argues that the claimant’s low back complaints are related to a new unrelated herniated disc that occurred in September of 2009. Arch points to evidence and argument it submitted concerning an MRI scan taken in September of 2009 which demonstrated a new annular tear at L4-5 that was not present in 2008. Arch points to opinions from Dr. Pitzer that this new finding was the cause of the claimant’s foot drop and ongoing presentation of symptoms after that time. Arch argues that the claimant’s non-work related motorcycle riding increased his symptoms and because the claimant had stopped working over a year prior to the development of those symptoms his work could not have caused his foot drop and ongoing presentations of symptoms. Arch argues that the ALJ’s order failed to address its defense of intervening injury.
The claimant concedes that Arch did raise the defense that even if it was responsible for the claimant’s low back problems and subsequent surgery in September of 2008; there was an intervening injury which occurred, following that surgery, from riding his motorcycle that ended its obligation to pay benefits. However, the claimant argues that the ALJ credited the opinions of Dr. Hattem and Dr. Hughes regarding causation. The claimant argues that although not noted in the ALJ’s order both Dr. Hattem and Dr. Hughes had both opined that the 2009 “foot drop” was not an intervening injury, but a natural progression of the claimant’s work for the employer in 2007 and 2008, which led to the surgery in September 2008. Therefore, the claimant argues that the ALJ did make sufficient findings of fact because he credited the testimony of Dr. Hattem and Dr. Hughes. We remand the matter for specific findings on the issue of an intervening injury.
We agree that the ALJ, in determining that the claimant sustained a compensable occupational disease involving his lower back, credited the medical opinions of Dr. Hattem and Dr. Hughes as persuasive concerning causation of the claimant’s lower back symptoms from 2007 ongoing. The ALJ further found that Dr. Pitzer performed an IME at the request of Arch and later testified as an expert and he agreed with Dr. Hughes and Dr. Hattem that the claimant’s work involved activities sufficient to contribute to an occupational disease of the lumbar spine.
However, we do not read the ALJ’s order as containing findings or conclusions as to whether Arch established any circumstances sufficient to apply the doctrine of intervening injury. Under these circumstances, in our view the ALJ must specifically determine where Arch bore its burden of establishing the factual foundation for the defense of an intervening injury.
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Under the circumstances here, we may not conclude that the ALJ implicitly rejected Arch’s defense of an intervening injury. See generally Womack v. Industrial Commission; 168 Colo. 364, 451 P.2d 761 (1969) (where the findings of fact do not afford an adequate basis for review, the matter must be remanded for additional findings); see also Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988) (basis for an order must be articulated). The ALJ’s order does not address the issue of whether there was an intervening injury. Consequently, the matter must be remanded for that purpose. Moland v. Roadway Package System, Inc., W. C. Nos. 4-282-792 and 4-282-794 (April 21, 2003); Unrein v. New Pipeline Installations, Inc., W. C. No. 3-106-663 (April 24, 1998).
Because we conclude the ALJ’s current order lacks sufficient findings, we should not be understood to express any opinion on the issue of whether the evidence established an intervening injury. We merely direct the ALJ to reconsider the record as presently constituted and enter a new order consistent with the views expressed herein.
Because of this determination we do not address the other arguments raised by Arch on appeal because they are intertwined with the issue of an intervening injury. Further, we note that Pinnacol has filed a brief contending that there was substantial evidence in the record to support the ALJ’s determination that the claimant’s May 14, 2004 injury did not worsen so as to justify reopening of the 2004 injury. However, we do not address Pinnacol’s arguments at this time because it is possible that a determination on the existence of an intervening injury may have an impact on Pinnacol’s position as well.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 9, 2010 is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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MICHAEL PATTON, ROY, WA, (Claimant).
K C RV CAMPING WORLD, LONGMONT, CO, (Employer).
ARCH INSURANCE, Attn: MS. SUZI LIMPPO, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
THE FRICKEY LAW FIRM, Attn: JANET L. FRICKEY, ESQ., LAKEWOOD, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ./LISARAE JUNGLING, ESQ., DENVER, CO, (Other Party).
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: VITO A. RACANELLI, ESQ., DENVER, CO, (Other Party 2).
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