W.C. No. 3-903-186Industrial Claim Appeals Office.
September 1, 1998
FINAL ORDER
The respondent seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay medical benefits for treatment of the claimant’s bi-polar disorder, and determined average weekly wage. We affirm the award of medical benefits, and dismiss the remainder of the appeal without prejudice.
The claimant suffered a compensable neck injury on May 13, 1998, which required surgical treatment. Dr. LaCerte, the treating physician, also diagnosed the claimant with depression and a non-work related bi-polar disorder. Dr. LaCerte opined that the claimant was “not a reasonable surgical candidate” due to these conditions, and stated that if these conditions were not treated “pre-operatively,” they could “compromise [the claimant’s] chances for a successful recovery” from surgery. Therefore, Dr. LaCerte referred the claimant to Dr. Ristig who provided pre-operative treatment to stabilize the depression and bi-polar disorder.
The ALJ found that treatment to stabilize the bi-polar disorder was “incidental” to the neck surgery which had previously been determined to be reasonable and necessary to cure or relieve the effects of the industrial injury. Therefore, the ALJ ordered the respondent to pay the medical expenses incurred by the claimant for treatment to stabilize the bi-polar disorder.
The ALJ also found that the industrial injury resulted in three periods of temporary disability and that the claimant’s wages increased significantly between each period of disability. Expressly relying on Campbell v. IBM Corp., 867 P.2d 77
(Colo.App. 1993), and § 8-42-102(3), C.R.S. 1997, the ALJ calculated the claimant’s average weekly wage for each period of disability based on the claimant’s average weekly wage at the time of the disability. However, the ALJ expressly declined to determine the claimant’s temporary disability benefit rate, or any applicable offset and “reduction” of the claimant’s disability rate. Rather, the ALJ expressly reserved these issues for future determination.
I.
On review the respondent points out that the claimant’s bi-polar disorder is not the result of the industrial injury. Therefore, the respondent argues the ALJ erred in ordering them to pay for treatment to stabilize the bi-polar disorder. We perceive no error.
Section 8-42-101(1)(a), C.R.S. 1997, requires the respondent to pay for medical treatment which is reasonably necessary to “cure and relieve” the claimant from the effects of the industrial injury. Country Squire Kennels v. Tarshis, 899 P.2d 362
(Colo.App. 1995). Contrary to the respondent’s argument, the compensability of medical treatment for a pre-existing, non-work-related condition is not dependent on proof that the industrial injury “aggravated” the pre-existing condition. Rather, treatment of a non-work-related condition may be compensable where it is necessary to treat the industrial injury Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448
(1949); Flynn v. M.A.G. Mining, Inc., W.C. No. 4-256-973 (June 6, 1997). This is true even if the disputed treatment is primarily designed to relieve the effects of the non-work-related condition See Lux v. The Garden Apartments, W.C. No. 3-772-933 (April 23, 1990) (vascular surgery for non-work-related condition compensable where surgery necessary to promote healing of industrial injury) Ceniceros v. Excel Corporation, W.C. No. 4-175-884 (May 9, 1994).
The question of whether the claimant sustained his burden to establish the requisite causal relationship between the disputed medical treatment and the industrial injury is one of fact for resolution by the ALJ. Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
The medical opinions of Dr. LaCerte and Dr. Ristig indicate that stabilization of the claimant’s bi-polar disorder was a necessary prerequisite to surgical treatment of the industrial injury. (Dr. LeCerte report July 16, 1996; Dr. Ristig report August 6, 1996). Furthermore, the ALJ previously determined that neck surgery was reasonable and necessary to cure and relieve the effects of the industrial injury. Therefore, the record contains substantial evidence from which the ALJ could, and did infer that treatment to stabilize the claimant’s bi-polar disorder was reasonably necessary to treat the industrial injury.
II.
The respondent also contends the ALJ abused his discretion by increasing the claimant’s average weekly wage, and in failing to determine the claimant’s temporary disability rate. We conclude that this portion of the ALJ’s order is interlocutory and not currently subject to review.
Section 8-43-301(2), C.R.S. 1997, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Notwithstanding the respondent’s contention that temporary disability was endorsed for adjudication, the ALJ explicitly declined to award or deny temporary disability benefits and reserved the issue for future determination. Because the ALJ did not award or deny any disability benefits within the meaning of §8-43-301(2), the ALJ’s determination of average weekly wage is interlocutory and not currently subject to review. See Salazar v. Conrad Nuances, W.C. No. 4-134-710 (March 14, 1994); Martin v. Montgomery Ward, W.C. No. 3-674-085 (August 27, 1990); Kish v. Burger King, W.C. No. 3-629-394 (October 20, 1989). Consequently, this portion of the petition to review must be dismissed without prejudice. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986) (order may be partially final and partially not final).
Moreover, it is within the ALJ’s discretion to reserve issues for future determination. Therefore, we deny the respondent’s request that we remand the matter to the ALJ for a determination of temporary disability. Insofar as the respondent seeks an order on the issue of temporary disability benefits, the respondent may file an application for hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 19, 1997, is affirmed insofar as it requires the respondent to pay medical benefits.
IT IS FURTHER ORDERED that the respondent’s petition to review the ALJ’s determination of average weekly wage is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed September 1, 1998 to the following parties:
Edwin Rodriguez, 5912 W. 75th Pl., Westminster, CO 80003
Kimberly Costin, Public Service Company of Colorado, P.O. Box 840, Ste. 800, Denver, CO 80201-0840
Kenneth Lampton, Jr., Esq., 7112 W. Jefferson Ave., Ste. 103, Lakewood, CO 80235 (For the Claimant)
Michael A. Perales, Esq., Dawn M. Yager, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________