W.C. No. 4-240-376Industrial Claim Appeals Office.
November 19, 1997
FINAL ORDER
Phase II Company (Phase II) and its insurer, the Colorado Compensation Insurance Authority (collectively the CCIA respondents), seek review of an order of Administrative Law Judge Wheelock (ALJ), which ordered them to pay medical and disability benefits for an occupational disease. We modify the award of medical benefits, but as modified, affirm the order.
The ALJ’s findings of fact may be summarized as follows. The claimant has been employed as a drywaller for thirty years. This work requires extensive, repetitive use of the arms, lifting sixty pounds on a frequent basis and overhead reaching. From 1988 to 1993 the claimant worked for Tri-City Drywall Inc. (Tri-City). He was then briefly employed by Lars Anderson Construction, Schauer Construction Company, Progressive Construction Inc., and Federal Contracting. Between April 23, 1994 and May 16, 1994 the claimant was employed with Phase II.
In 1990 the claimant began to experience pain in both shoulders, and in 1991 he was treated for bilateral shoulder pain at the Veterans’ Administration Hospital. Thereafter, he continued to experience shoulder pain and developed pain in his neck and chest. His pain further increased during his employment at Phase II. On May 16, 1994, the claimant was using a “banjo” to perform overhead work when he experienced a sharp pain in his shoulder and chest. The pain was so severe that he left work and sought treatment from Dr. Whittington. The claimant was also seen by his personal physician, Dr. Barrick, who restricted him from lifting and overhead work, and referred the claimant to Dr. Stringer for further examination.
Dr. Stringer diagnosed the claimant as suffering from a work-related cumulative bilateral shoulder injury which ultimately resulted in tendinopathy and a right rotator cuff tear. In August 1994, Dr. Stringer performed an arthroscopic subacromial decompression to repair the rotator cuff. On October 23, 1995, Dr. Stinger rated the claimant’s permanent impairment from the injury as 14 percent of the right upper extremity and 16 percent of the left upper extremity which he converted to 17 percent impairment of the whole person.
Relying upon § 8-41-304(1), C.R.S. 1997, the ALJ found that the claimant suffered an occupational disease to his shoulders and was last injuriously exposed to the hazards of the disease while working at Phase II. The ALJ also found that the claimant’s condition was substantially and permanently aggravated during his employment at Phase II. Therefore, the ALJ ordered the CCIA respondents to pay all reasonable and necessary medical expenses incurred to treat the injury, including treatment by Dr. Barrick, Dr. Whittington, and Dr. Stringer. The ALJ also determined that the claimant sustained permanent medical impairment not listed on the schedule of disabilities. Therefore, the ALJ ordered the CCIA respondents to pay permanent partial disability benefits in accordance with Dr. Stringer’s whole person impairment rating.
I.
On review, the CCIA respondents do not dispute the ALJ’s finding that the claimant sustained a bilateral shoulder injury over the course of his employment as a drywaller. Nor do they dispute the ALJ’s determination that liability for the injury is governed by § 8-41-304(1), C.R.S. 1997. That statute provides that “where compensation is payable for an occupational disease” the employer in whose employment the claimant was “last injuriously exposed” to the hazards of the disease and “suffered a substantial permanent aggravation thereof” is solely for the disease. The CCIA respondents further concede that the claimant’s regular job duties at Phase II were similar to the duties of his prior employment, and thus, they do not dispute that the claimant was injuriously exposed to the hazards of his disease while working at Phase II. However, they contend that the record is insufficient to support the ALJ’s determination that the claimant’s condition was “substantially permanently aggravated” during his employment at Phase II. We disagree.
Whether the claimant’s employment has caused a substantial permanent aggravation of his condition is a question of fact for the ALJ. Monfort Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993). Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; Monfort Inc. v. Rangel, supra.
Further, where the evidence is subject to conflicting inferences, the issue on review 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, we may not interfere with the ALJ’s credibility determinations, and her assessment of the sufficiency and probative weight of the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993.
Admittedly Dr. Stringer was unable to determine the precise cause of the claimant’s rotator cuff tear. Nevertheless, Dr. Stringer stated that the claimant’s history reflected a worsening of his condition in the six months prior his July 1994 examination, and that the rotator cuff tear could have been the result of an “acute” incident on May 16, 1994. (Stringer depo. pp. 10-11, 21, 33).
Furthermore, the claimant’s testimony amply supports the ALJ’s finding that prior to May 16, 1994, the claimant’s shoulder problems did not cause him to miss any time from work and did not preclude him from performing his regular employment. However, following the incident on May 16, 1994 the claimant was medically restricted from performing his regular employment, and lost time from work as a result of the injury. Under these circumstances, the ALJ could and did reasonably infer that the claimant’s employment at Phase II resulted in a substantial and permanent aggravation of his condition.
II.
The CCIA respondents also contend that they had no notice of the claimant’s injury until February 9, 1995, when they received the claimant’s written claim for workers’ compensation. Therefore, they argue that the ALJ erred in ordering them to pay for medical treatment provided by Dr. Whittington, Dr. Barrick, and Dr. Stringer before February 9, 1995. We agree, and modify the ALJ’s order accordingly.
The last injurious exposure rule does not govern liability for medical benefits in a claim based upon an occupational disease. Instead, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). However, the insurer is only liable for emergency and “authorized” medical treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990).
The claimant has not contended that the disputed medical treatment falls with the “emergency” treatment exception to the authorization rule. Furthermore, § 8-43-404(5)(a), C.R.S. 1997, allows the employer to select the authorized treating physician at the time of the injury. If the employer fails to select a physician, the right of selection passes to the claimant, and the treatment provided by that physician is authorized. The employer’s right to select the treating physician is triggered when the employer has:
“some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.”
Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984).
Here, the ALJ found that the claimant knew Tri-City and Phase II had a list of designated providers for work-related injuries, but did not believe his shoulder problems were work-related and therefore, he did not seek treatment from the designated physicians. The ALJ also found that the claimant did not report any shoulder injury to the respondent-employers. (Findings of Fact 7, 17, 19, 20). These findings are supported by the record, and thus, must be upheld. (Tr. pp. 13, 14, 17, 32-33, 52).).
However, these findings do not support the ALJ’s determination that “Dr. Barrick, Dr. Whittington, and Dr. Stringer shall be considered authorized treating physicians.” Therefore, the ALJ’s findings do not support the order which requires the CCIA respondents to pay for the medical treatment provided by these physicians prior to February 9, 1995. Consequently, we set aside the contested portion of the award of medical benefits. Section 8-43-301(8), C.R.S. 1997.
III.
Lastly, the CCIA respondents contend that the ALJ erred in awarding medical impairment benefits based upon impairment of the whole person. We perceive no error.
Section 8-42-107(1), C.R.S. 1997, provides that the claimant is limited to a scheduled disability award if the claimant suffers an “injury or injuries” described in § 8-42-107(2) Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2) the claimant is entitled to an award of benefits based upon impairment of the whole person under § 8-42-107(8), C.R.S. 1997. In the context of §8-42-107(1), the term “injury” refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Mountain City Meat Co., v. Industrial Claim Appeals Office, 919 P.2d 246 (Colo 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
Damage to the structures of the “shoulders” may or may not reflect a “functional impairment” which is enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). The question of whether the claimant has suffered a scheduled or non-scheduled injury is a factual matter for resolution by the ALJ. Langton v. Rocky Mountain Health Care Corp., supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Strauch v. PSL Swedish Healthcare System, supra.
Furthermore, there is no requirement that functional impairment take any particular form in order to be compensable under § 8-42-107(8). Garcia v. Advanced Component Systems, Inc., W.C. No. 4-187-720 (June 21, 1996) Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995). Accordingly, in Garcia we concluded that pain and discomfort which interferes with the claimant’s ability to use a portion of the body may be considered “impairment.” See also Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (August 9, 1996), aff’d, Mader v. Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication) (claimant sustained functional impairment of the whole person where back pain impaired use of an arm).
Here, the ALJ explicitly recognized the applicable legal standard, and found that the claimant has weakness in both shoulder joints, and pain “in the muscles on the top of the shoulder area” going “up the side of his neck.” The ALJ also found that this pain limits the claimant’s ability to perform many activities and results in limited mobility of both arms above the shoulder. (Finding of Fact 15).
These findings are supported by substantial evidence in the record. Moreover, these findings reflect the ALJ’s determination that the claimant sustained permanent functional impairment beyond the “arm at the shoulder.” Section 8-42-107(2), C.R.S. 1997; Mader v. Popejoy Construction Co., Inc., supra. Therefore, we must uphold the ALJ’s finding that the claimant suffered functional impairment which must be compensated as impairment of the whole person. The respondents’ remaining arguments to the contrary are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 31, 1996, is set aside insofar as it requires the CCIA to pay for medical treatment by Dr. Whittington, Dr. Barrick and Dr. Stringer prior to February 9, 1995. As modified, the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed November 19, 1997
to the following parties:
Celestino Salaz, 3703 Windflower, Colorado Springs, CO 80918
Phase II Company, P.O. Box 1459, Ft. Collins, CO 80522-1459
Lars Anderson, Lars Anderson Constr., 17180 Early Star Dr., Monument, CO 80132
Tri City Drywall, Inc., 3524 E. St. Vrain, Colorado Springs, CO 80909
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Angie Abts, Wausau Ins. Co., P.O. Box 49157, Kansas City, MO 64141-6157
Harry A. King, Jr., Esq., 679 Grant St., Denver, CO 80203 (For Nationwide Respondents)
Timothy L. Nemechek, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For CCIA Respondents)
Dale Gerlach, Esq., 228 North Cascade, Ste. 200, P.O. Box 636, Colorado Springs, CO 80901 (For the Claimant)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For Phase II Respondents)
Frank Cavanaugh, Esq., 3464 Willow St., Denver, CO 80231-4599 (For Schauer and CCIA)
BY: __________________________