W.C. Nos. 4-437-267 4-440-591Industrial Claim Appeals Office.
August 24, 2001
FINAL ORDER
Wal-Mart Stores, Inc. (Wal-Mart) and its insurer, American Home Assurance (collectively the American respondents) seek review of an order of Administrative Law Judge Harr (ALJ Harr) which apportioned liability for medical benefits. We affirm.
In an order dated June 18, 2000, ALJ Jones found the claimant suffered a compensable left knee injury on July 4, 1999, while working as a night stocker for Wal- Mart. The claimant reported the injury to Wal-Mart, but was not provided medical treatment. The claimant terminated the employment on July 5, 1999.
On July 29, 1999, the claimant began working as a night patrol guard for American Patrol Guard Company (Patrol). The employment required the claimant to climb stairs and walk the premises. ALJ Jones found the job duties at Patrol aggravated the July 4 injury and caused the claimant to sustain an occupational disease affecting the left knee. Patrol did not refer the claimant to a physician.
On September 28, 1999, the claimant was examined by Dr. Pazik, who recommended a left knee arthroscopy. However, the surgery was postponed because the employers denied liability. ALJ Jones found the recommended treatment was reasonable and necessary to cure and relieve the effects of the occupational disease and awarded medical benefits. No appeal was taken from the order.
On August 21, 2000, the claimant underwent a left knee arthroscopy with lateral retinacular release and excision of plica by Dr. Pazik. Patrol and its insurer, Liberty Mutual Insurance Company (Liberty) admitted liability for 50 percent of the cost of the surgery. The American respondents denied all liability.
ALJ Harr determined the August surgery was reasonable and necessary to cure and relieve the claimant from the effects of both the July 4 injury and the occupational disease sustained at Patrol. ALJ Harr further determined that 50 percent of the need for the surgery was due to the July 4 injury. In support, ALJ Harr credited the claimant’s testimony to find that symptoms from the July 4 injury had not resolved before the claimant began working for Patrol. (Finding of Fact 4). Therefore, ALJ Harr ordered the American respondents to pay 50 percent of the cost of the surgery. This appeal followed.
On appeal, the American respondents contend the evidence is legally insufficient to support ALJ Harr’s finding that symptoms from the July 4 injury had not resolved prior to the date the claimant began working at Patrol. They also contend there is no evidence the July 4 injury contributed to the need for the August 21 surgery. We disagree.
ALJ Harr correctly determined that liability for the insurance carrier “on the risk” at the time medical expenses are incurred for an occupational disease is liable for payment of those medical expenses University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001). The term “on the risk” refers to the employment which caused need for the treatment. However, an ALJ may apportion liability for medical benefits where the need for treatment is due to successive injuries. University Park Care Center v. Industrial Claim Appeals Office, supra.
The determination of which employment caused the need for treatment is a question of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). We must uphold the ALJ’s factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2000. Under this standard, we must view evidence in light most favorable to prevailing part , and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. See 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).
The record contains no direct medical evidence which apportions 50 percent of liability for the August surgery to the July 4 injury. However, the American respondents concede that medical evidence is not required to apportion medical benefits. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963). Rather, where there is no direct evidence, the issue is whether the ALJ’s inferences were permissible in light of the totality of the circumstances. Lantern Inn v. Industrial Commission, 624 P.2d 929
(Colo.App. 1981). In this regard, the ALJ findings may be inferences from circumstantial evidenc . Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Because the American respondents did not tender the services of a physician, there is no medical evidence in the record concerning the nature and extent of the claimant’s left knee injury immediately following the July 4 injury. However, the claimant testified and ALJ Jones found that the July 4 injury occurred when the claimant got her foot stuck in the side panel of a forklift, tripped and landed on her left knee. (Tr. p. 10). The claimant added that she heard a pop in her left knee after which her knee became very sensitive with walking. (Tr. p. 10).
Further, the claimant stated that after she began working at Patrol, her condition worsened. In particular, she stated it “became more swollen” and “more sensitive to pain.” (Tr. p. 11). Based upon this testimony, ALJ Harr reasonably inferred that the effects of the July 4 injury had not resolved when the claimant began working at Patrol. ALJ Harr’s finding is consistent with ALJ Jones undisputed finding that the occupational disease was caused by the “aggravation” of the July 4 injury.
Similarly, ALJ Harr’s finding that the July 4 injury and occupational disease were equally contributing factors in the need for the left knee surgery is a plausible inference from the circumstantial evidence. The claimant testified that prior to the July 4 injury, she never had any problems with her left knee. (Tr. pp. 15, 16). She also denied any prior knee surgeries. Further, the claimant stated that she was able to engage in a variety of sport activities prior to the July 4 injury, but had problems performing these activities after the injury. (Tr. p. 17). Thus, the claimant’s testimony contains substantial evidence to support ALJ Harr’s implicit determination that the July 4 injury was the initial catalyst and a substantial factor in the claimant’s pain and physical limitations. Further, the claimant’s testimony supports a determination that the untreated injury established the underlying condition which the Patrol employment acted upon to increase the claimant’s disability. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ’s order).
ALJ Harr’s determinations are buttressed by Dr. Swafford’s medical report dated October 28, 1999, where Dr. Swafford imposed work restrictions he attributed to the effects of the work-related injury that occurred on July 4, 1999. In fact, Dr. Swafford’s handwritten “Hx of Present Injury” stated the claimant reported bruising and swelling for several days with pain ever “since” that injury. (Dr. Swafford Illness/Injury Encounter, October 28, 1999).
Finally, it is true that ALJ Jones found Dr. Pazik’s treatment on September 28, 1999 was related to the “occupational disease.” However, ALJ Jones also found the treatment received from Dr. Pazik “has been for the left knee injury and is compensable.” Further, the ALJ ordered that “respondents” are liable for medical treatment from Dr. Pazik and all subsequent referrals. The ALJ did not determine the extent to which the injury and occupational disease contributed to the recommendation for left knee surgery. Therefore, ALJ Harr’s apportionment of liability for the surgery is not inconsistent with the findings of ALJ Jones.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 22, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be 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 August 24, 2001 to the following parties:
Latoka Marie Roskop, 1131 8th St., Greeley, CO 80631
Wal-Mart Stores, Inc., Sam’s Club, 4700 Boardwalk Dr., Ft. Collins, CO 80525
American Patrol Guard Company, 10170 E. Mississippi Ave., Denver, CO 80231-2418
American Home Assurance, Erin Bishop, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Liberty Mutual Insurance Company, P. O. Box 3539, Englewood, CO 80155-3539
Katherine E. Allen, Esq., 705 14th St., Greeley, CO 80631 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents Wal-Mart Stores, Inc. and American Home Assurance)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents American Patrol Guard Company and Liberty Mutual Insurance Company)
BY: A. Pendroy