W.C. Nos. 4-206-040 4-464-407Industrial Claim Appeals Office.
October 16, 2001
FINAL ORDER
Copy Vent Inc. and its insurer, American Compensation Insurance Authority (hereinafter referred to as the respondents) seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay temporary disability and medical benefits. We affirm the awards and dismiss part of the petition to review without prejudice.
The claimant suffered admitted back injuries in 1993 and 1994 while employed by Dale A. Wahl D.D.S. Thereafter the claimant suffered constant low back pain radiating into his right leg. The treating physicians recommended surgery.
The claimant was still symptomatic in 1996 when he began working for Copy Vent Inc. The claimant testified that on June 6, 200, he experienced a sudden, severe increase of pain while moving a copier at work. The claimant sought treatment at Concentra Medical Center (Concentra) where he was medically restricted from returning to his regular employment.
Crediting the opinions of Dr. Shaw, the ALJ found the claimant suffered a compensable injury on June 6, 2000. Consequently, the ALJ required the respondents to pay medical benefits for low back treatment received by the claimant in June 2000. The ALJ also ordered the respondents to pay temporary disability benefits commencing June 6, 2000.
On review the respondents contend Dr. Shaw’s opinions do not support the ALJ’s finding the claimant suffered a new injury on June 6, 2000. We disagree.
The applicable law is undisputed. A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. The existence of a pre- existing disease does not preclude the claimant from suffering a compensable injury. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990). Rather, the claimant has suffered a compensable injury if the industrial accident is the proximate cause of the claimant’s need for medical treatment or disability. Section 8-41-301(1)(c), C.R.S. 2001. An industrial accident is the “proximate” cause of a claimant’s disability if it is the “necessary precondition or trigger” of the need for medical treatment Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
Pain is a typical symptom caused from the aggravation of a preexisting condition. Insofar as the pain triggers the claimant’s need for medical treatment, the claimant has suffered a compensable injury See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448
(1949). In other words, the claimant is entitled to medical benefits for the aggravation, so long as the pain is proximately caused by the industrial aggravation and is not simply a direct and natural consequence of the original injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Singleton v. Kenya Corp., 961 P.2d 571 (Colo.App. 1998).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. 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). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim A Appeals Office, 973 P.2d 624 (Colo.App. 1997). Insofar as the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to determine the inference to be drawn and we may not substitute our judgment for that of the ALJ in this regard. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Following an independent medical examination of the claimant on June 27, 2000, Dr. Shaw opined that, after the June 6, 2000 accident, there was no “objective change: in the claimant’s condition. Dr. Shaw also attributed the claimant’s overall symptomatology to the 1993 and 1994 injuries. Further, Dr. Shaw found no “permanent aggravation” from the incident. Rather, Dr. Shaw characterized the June 6 incident as a “temporary” and “extensive exacerbation” of the claimant’s preexisting condition.
Contrary to the respondents’ arguments, Dr. Shaw’s opinions, together with the evidence the claimant was able to work prior to June 6 and unable to return to work after June 6 supports the ALJ’s implicit determination the June 6 accident was the proximate cause of the claimant’s June 2000 medical treatment and temporary disability commencing June 6, 2000. (See Tr. pp. 20, 23, 55). Consequently, the record supports the ALJ’s finding of a compensable injury and the award of temporary total disability commencing June 6, 2000.
However, the ALJ did not determine the duration of the respondents’ liability for temporary disability benefits. In particular, the ALJ further found that if the claimant undergoes recommended surgery or an invasive procedure the resulting disability “may be” the result of the 1993 and 1994 injuries, and no longer the result of the June 2000 exacerbation. However, the ALJ concluded that it was “not possible to determine” prior to the surgery whether the respondents are liable for temporary disability benefits after surgery. Therefore, the ALJ reserved the issue for future determination. (See Conclusion of Law 7).
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. Section 8-43-301(2), C.R.S. 2001. 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).
Because the ALJ expressly reserved the issue for future determination, the order does not determine the respondents’ liability for temporary disability benefits following surgery. Therefore, we currently lack jurisdiction to consider the respondents’ contention that the ALJ erroneously failed to apportion liability for temporary disability benefits following surgery.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 20, 2000, is affirmed.
IT IS FURTHER ORDERED that the respondents’ petition to review the ALJ’s order concerning liability for temporary disability benefits following surgery is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2001. 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 October 16, 2001 to the following parties:
Esmael Sarvestani, 2410 S. Quebec, Apt. 303, Denver, CO 80231
Management, Copy Vend, Inc., 6666 Stapleton Drive South, Denver, CO 80216
Dale A. Wahl, D.D.S., 14001 E. Iliff, #303, Aurora, CO 80014
American Compensation Insurance Company, Patty Enloe, RTW Colorado, Inc., 7400 E. Orchard Rd., #3025, P. O. Box 6451, Englewood, CO 80155
Mike Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondent Dale A. Wahl, D.D.S.)
Robert J. Erickson, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Katherine Markheim Lee, Esq. and Jonathan A. Decker, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents Copy Vend, Inc. and American Compensation Insurance Company)
Michael W. Sutherland, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043
BY: L. Epperson