W.C. Nos. 4-352-256, 4-391-859 4-521-484Industrial Claim Appeals Office.
May 20, 2003
FINAL ORDER
In these consolidated workers’ compensation cases the claimant and the respondents seek review of an order of Administrative Law Judge Felter (ALJ). The respondents contend the ALJ incorrectly applied the “substantial permanent aggravation” test in determining the claimant sustained a compensable injury on July 10, 2001. The claimant contends the ALJ erred in limiting medical benefits to the cost of surgery and related hospitalization charges incurred from October 29, 2001, to October 31, 2001. We affirm the finding of compensability and remand the matter for additional findings concerning the identity of the authorized treating physician or physicians.
The claimant sustained a compensable cervical injury in 1997, and a compensable low back injury in 1998. The claims for these injuries were denominated as W.C. No. 4-352-256 and W.C. No. 4-391-859 respectively. The record reveals that the authorized providers for these injuries were Dr. Aschberger and Concentra. The claims were closed by Final Admissions of Liability dated April 28, 2000.
The claimant filed a third claim for benefits based on a low back injury which allegedly occurred on July 10, 2001, when he lifted a bag. The claimant also filed petitions to reopen the prior claims.
The ALJ credited the claimant’s testimony that he injured his back when lifting the bag on July 10. He further credited the opinion of the claimant’s medical expert, Dr. Hughes, who opined the July 10 incident initiated a “progressive weakening” at L3-4 causing herniation of the disc and the consequent hospitalization on October 29, and surgical repair of the disc on October 31. The ALJ specifically found the testimony of Dr. Hughes amounted to an opinion the claimant sustained a “substantial permanent aggravation” of the preexisting back condition. The ALJ denied and dismissed the petitions to reopen.
The ALJ also credited the opinion of Dr. Hughes that the surgery was the result of a bona fide emergency. Consequently, the ALJ ordered the respondents to pay for the surgery and hospital expenses, but concluded “all other care outside the previously authorized chain of referrals” was unauthorized. (Conclusion of Law d). Consequently, the claimant’s request for payment of such “other care” was implicitly denied.
I.
On review, the respondents contend the ALJ erred in applying the “substantial permanent aggravation” test when determining the claimant sustained a compensable injury on July 10. The respondents argue the application of this standard was prejudicial because it may have caused the ALJ to give weight to unspecified evidence which does not support the finding of compensability. We perceive no reversible error.
The respondents correctly state that “substantial permanent aggravation” is not the standard used for determining whether an aggravation or worsening of a preexisting condition constitutes a compensable injury. Rather, the substantial permanent aggravation and last injurious exposure tests comprise the standard to be used in allocating liability between multiple employers and insurers in cases of occupational disease. Section 8-41-304(1), C.R.S. 2002; Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). Provided there is a last injurious exposure, a subsequent employer or insurer is liable for the occupational disease if the exposure results in a substantial and permanent aggravation of the disease.
However, the ALJ’s application of the “substantial permanent aggravation” test was harmless in this case. In order to impose liability for medical treatment, the ALJ must find the need for treatment was proximately caused by an injury arising out of and in the course of the employment. Section 8-41-301(1)(b), C.R.S. 2002. The determination of whether the claimant proved causation is one of fact for the ALJ Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
In order to prove causation, it is not necessary to establish that the industrial injury was the sole cause of the need for treatment. Rather, it is sufficient if the injury is a “significant” cause of the need for treatment in the sense that there is a direct relationship between the precipitating event and the need for treatment. Thus, if the industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
Because causation is a factual issue, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Here, the ALJ expressly credited the opinion of Dr. Hughes that the July 10 lifting incident aggravated the claimant’s pre-existing back condition and caused a progressive worsening which resulted in the hospitalization and need for surgery. In fact, Dr. Hughes testified the July 10 injury was a “necessary pre-condition” to the subsequent deterioration in the claimant’s condition. (Tr. P. 37). Consequently, we have no doubt the ALJ found the existence of facts sufficient to establish the claimant sustained a compensable injury on July 10, and that the injury was the cause of the subsequent need for hospitalization and surgery.
As the claimant argues, the ALJ’s application of the “substantial permanent aggravation” standard imposed a higher burden of proof than is required by law to establish a compensable aggravation of a preexisting condition. The Seifried and Joslins cases require only a “significant” causal relationship between the injury and the need for treatment, and there is no requirement that an aggravation be “substantial” or “permanent.” Consequently, if there was any error it benefited the respondents and is harmless in light of the ALJ’s ultimate finding.
II.
The claimant contends the ALJ’s order improperly held that only the surgery and hospitalization constituted “authorized” treatment. The claimant asserts, at least implicitly, that the ALJ erred in denying compensation for treatment, including physical therapy, which the claimant received after the injury. We remand for entry of a new order on this issue.
The ALJ determined the surgery and related expenses constituted authorized treatment because they were provided under emergency circumstances. See Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). However, the ALJ also concluded that other treatment was not authorized, apparently because the claimant did not return to the physician and treatment facility which provided authorized care for the 1998 and 1997 industrial injuries.
In our view, the ALJ’s findings of fact are insufficient to support this conclusion. Because the ALJ found the claimant sustained a new industrial injury on July 10, 2001, the respondents were obligated to exercise their right of selection forthwith, or the right of selection passed to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). We have previously held the obligation to designate a physician arises when the employer has some knowledge of accompanying facts connecting an injury or illness to the employment indicating to a reasonably conscientious manager the case might result in a claim for compensation. Grove v. Denver Oxford Club, W.C. No. 4-293-338
(November 14, 1997). Further, if a claim has been closed and the right to medical benefits terminated, the obligation to appoint a treating physician arises anew when a petition to reopen is filed. Wright v. City and County of Denver, W.C. No. 4-172-294 (December 4, 1995).
Here, we are unable to determine the basis of the ALJ’s conclusion that the claimant was obligated to return to the physician and facility which treated the 1997 and 1998 injuries, especially because the ALJ found those claims were closed and the claimant sustained a new injury in 2001. On remand, the ALJ shall enter specific findings of fact and conclusions of law determining the identity of the authorized physician or physicians for the July 2001 injury. The ALJ shall then redetermine the compensability of the medical benefits implicitly denied. Section 8-43-301(8) (panel may set aside order if the findings of fact are insufficient to support appellate review).
We note the ALJ directed the parties to attempt to reach agreement on the issue of average weekly wage. However, that issue was not addressed in the order, and consequently the order is not final with respect to temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 22, 2002, is affirmed insofar as it determined the claimant sustained a compensable injury in July 2001, and ordered the respondents to pay for the surgery and hospital expenses.
IT IS FURTHER ORDERED that the order is set aside insofar as it denied compensation for other medical expenses. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein. The ALJ may, in the exercise of his discretion, hold a new hearing on this issue if he so chooses.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 20, 2003 to the following parties:
Jay F. Reynolds, 7948 S. Bemis St., Littleton, CO 80120
Susan Craig, U.S. Airways Group, Inc., 8400 Pena Blvd., Denver, CO 80249
David Waltl, U.S. Airways Group, Inc., Workers’ Compensation Dept., 2 Park Ridge Center, Pittsburgh, PA 15275
Jason Houston, Sedgwick Claims Management Services, Inc., 7400 E. Orchard Rd., #4015 Greenwood Village, CO 80111
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Katherine Markheim Lee, Esq. and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290 (For Respondents)
By: A. Hurtado