W.C. No. 4-101-085Industrial Claim Appeals Office.
May 9, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which relieved the respondents of liability for further medical benefits. The claimant argues the ALJ’s findings of fact concerning the issue of causation are not supported by the evidence. We affirm.
While employed by respondent Guaranty National Insurance (Guaranty), the claimant sustained a compensable occupational disease described as “repetitive motion syndrome” of both upper extremities. The claimant developed the disease between 1986 and 1991 while performing repetitive activities involving the use of a stapler and filing duties. The claimant was originally placed at maximum medical improvement (MMI) in November 1992, and she was restricted to lifting no more than ten to fifteen pounds, and directed to avoid repetitive gripping, grasping, pushing or pulling. In July 1992, Guaranty terminated the claimant’s employment because her condition rendered her unable satisfactorily to perform her duties.
By order dated July 15, 1993, the claimant was awarded ongoing medical benefits after MMI because the claimant continued to experience pain, loss of strength and stiffness in her hand and neck. The respondents selected Dr. Bernton to provide the treatment. Dr. Bernton diagnosed the claimant as suffering from minor reflex sympathetic dystrophy (RSD), which he treated with nerve blocks and various medications.
Throughout the time period in question, the claimant was concurrently employed by Panorama, a bus service. In April 1994, the claimant was assigned duties as a dispatcher. This job involved various activities which included taking notes, entering data on a computer and printing out information. The claimant spent between 30 minutes and 1 1/2 hours per day on the computer. In June 1995 the claimant was terminated because medications prescribed for her condition caused concentration and memory problems.
In July 1995 the claimant applied for Social Security disability benefits. The application contains the report of a vocational rehabilitation counselor who reported the claimant’s duties as a dispatcher required the claimant to use “her upper extremities on a frequent to continuous basis,” and the claimant experienced “numerous RSD exacerbations in her arms and neck.” The claimant was awarded Social Security disability benefits in January 1996. Thereafter, Dr. Bernton continued to supply various medications to treat the claimant’s ongoing symptoms.
On April 19, 2000, Dr. Pitzer issued a report concerning his review of the claimant’s medical history. Dr. Pitzer noted the claimant’s employment as a dispatcher for Panorama involved “repetitive hand activities” which exceeded permanent work restrictions originally issued in November 1992 and substantially reaffirmed by Dr. Bernton in June 1994. Because Dr. Bernton’s records reflected the claimant was free from ongoing use of medication in June 1994, but subsequently required the use of several medications, Dr. Pitzer opined the claimant’s duties as a dispatcher resulted in a “significant worsening in [sic] permanent substantial aggravation of her condition.” Based on this report, the respondents took the position they are not liable for any medical benefits after June 2000.
The ALJ concluded the claimant suffers from an occupational disease; therefore, she held liability for medical benefits should be assigned to the “employer on the risk of the time of the need for additional treatment.” Further, the ALJ determined the employer “on the risk” is the employer which “caused, aggravated, or accelerated the occupational disease and triggered the need for treatment.” The ALJ credited the opinion of Dr. Pitzer that the claimant’s “repetitive hand activities” as a dispatcher for Panorama aggravated the claimant’s occupational disease and caused the need for treatment, at least by April 1994. Consequently, the ALJ relieved the respondents of liability for further medical benefits.
On review, the claimant contends the record lacks substantial evidence to support the ALJ’s determination the claimant sustained a “new injury” or “substantial permanent aggravation” of her condition while employed by Panorama. Consequently, the claimant asserts the ALJ erred in relieving the respondents of liability for additional medical benefits. We find no error.
The ALJ correctly held that where, as here, the issue involves medical benefits for an occupational disease, liability is not determined according to the last injurious exposure and substantial permanent aggravation requirements of § 8-41-304(1), C.R.S. 2001. Rather, the insurer liable for medical expenses is the one “on the risk” at the time such expenses are incurred. Royal Globe Insurance Co. v. Collins, 723 P.2d 731, 733 (Colo. 1986). The insurer “on the risk” is “the insurer that provided coverage to the employer whose conditions of employment caused the need for treatment.” Thus, the evidence “must demonstrate that the employment with that employer caused, aggravated, or accelerated the claimant’s injury.” University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001).
The question of whether the evidence shows that a particular employment caused, aggravated, or accelerated a condition so as to produce the need for medical treatment is one of fact for determination by the ALJ University Park Care Center v. Industrial Claim Appeals Office, supra. Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The claimant’s assertions notwithstanding, substantial evidence supports the ALJ’s finding that the claimant’s duties as a dispatcher for Panorama aggravated her preexisting condition so as to produce the need for subsequent medical treatment. As the ALJ found, this conclusion is supported by the claimant’s statements to the vocational counselor concerning her duties as a dispatcher, as well as the expert opinion of Dr. Pitzer. Moreover, as the ALJ noted, the opinion of Dr. Pitzer was substantially corroborated by the testimony of Dr. Bernton. Dr. Bernton testified that if the vocational counselor’s notes were correct concerning the claimant’s duties as a dispatcher, he would “agree with Dr. Pitzer” and “would think that that would be sufficient to exacerbate her symptoms and her RSD.” (Bernton depo. pp. 8-9). Finally, the claimant’s application for Social Security benefits demonstrates the claimant herself represented that her condition permanently worsened following her employment as a dispatcher.
It is true that some evidence, including portions of Dr. Bernton’s testimony, could support contrary findings and conclusions. However, it was for the ALJ to resolve any inconsistencies in Dr. Bernton’s testimony and give it such weight and credibility as the ALJ determined was appropriate. See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993) (ALJ may credit all, or only part of a witness’ testimony). Further, the mere fact the evidence might support a different result affords no basis for relief on appeal. University Park Care Center v. Industrial Claim Appeals Office, supra. Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 2, 2001, is affirmed.
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 9, 2002 to the following parties:
Amy Smith, 224 S. Gilbert, Castle Rock, CO 80104
Guaranty National Insurance Co., 9800 S. Meridian Blvd., Englewood, CO 80112-5901
Great Northern Insurance Co., c/o Chubb Group of Ins. Companies, 15 Mountain View Rd., Warren, N.J. 07059
Chubb/Pacific Indemnity Co., 6400 S. Fiddlers Green Circle, #1600, P. O. Box 6520, Englewood, CO 80155-6520
James A. May, Esq., 155 S. Madison, #330, Denver, CO 80209 (For the Claimant)
Thomas L. Kanan, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
By: A. Hurtado