W.C. No. 3-112-042Industrial Claim Appeals Office.
December, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which required them to provide medical benefits beyond maximum medical improvement. We affirm.
The ALJ’s findings of fact may be summarized as follows. The claimant suffered an admitted occupational disease, diagnosed as plantar fasciitis, arising out of her employment for White House Skyland (White House). The claimant was laid off by White House on August 31, 1994. Commencing October 24, 1994, the claimant obtained part-time work at McDonald’s.
Dr. Fawcett determined that the claimant reached maximum medical improvement (MMI) on November 3, 1994, and opined that the claimant may need further treatment in the form of injections and non-steroidal anti-inflammatory medications on an intermittent basis. Similarly, Dr. Feild opined that the claimant requires continuing care including orthotics, injections and anti-inflammatories. Based upon this evidence, the ALJ determined that future medical treatment will be reasonably necessary to relieve the claimant from the effects of the occupational disease.
The ALJ further found that the claimant’s symptoms have become less severe since the lay off at White House, but have not disappeared. Accordingly, the ALJ determined that the claimant’s work at McDonalds has not aggravated the claimant’s condition to the extent that the need for future medical care is caused by the employment at McDonalds. Therefore, the ALJ concluded that the respondents are liable for the claimant’s continuing medical treatment.
On review, the respondents do not dispute the ALJ’s determination that the claimant needs further medical treatment. However, relying on Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986), and our conclusions in Martinez v. Storage Technology Corp., W.C. No. 4-175-875, August 31, 1995, the respondents contend that McDonalds is liable for the claimant’s future medical treatment. We disagree.
Section 8-41-304(1), C.R.S. (1995 Cum. Supp.) provides that where “compensation is payable for an occupational disease,” the employer or insurer in whose employment the claimant was “last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof,” is “solely liable” for the disease. However, the respondents recognize that in Royal Globe Insurance Co. v. Collins, supra, our Supreme Court concluded that the term “compensation,” as used in the predecessor to § 8-41-304(1), does not include medical benefits. Further, the Supreme Court concluded that 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. 723 P.2d at 736.
In Royal Globe the claimant was found to have suffered an occupational disease as a result of injurious exposures both before January 1, 1978, when her employer was insured by the Potomac Insurance Company, and after January 1, 1978, when her employer was insured by the Royal Globe Insurance Company. Under these circumstances, the Supreme Court concluded that Potomac was the insurer “on the risk” for the medical expenses incurred by the claimant prior to January 1, 1978 and Royal Globe was the insurer “on the risk” for the subsequent medical benefits.
In Martinez v. Storage Technology Corp., supra, we relied upon Royal Globe to conclude that liability for medical benefits must be determined under the usual rules governing liability for workers’ compensation benefits. Accordingly, we concluded that to impose liability for medical benefits on a particular employer or insurer, the claimant must demonstrate a causal connection between the need for medical benefits and the employment. In other words, the claimant must establish that the employment caused, aggravated, or accelerated the occupational disease, before that employment may be considered “on the risk” for medical expenses.
The evidence in Martinez was susceptible to conflicting inferences concerning whether the claimant’s need for medical treatment was related to the claimant’s employment at Storage Technology Corp., or an aggravation of the claimant’s condition during subsequent employment. Therefore, we remanded the matter for the ALJ to determine whether Storage Technology Corp., and its insurer, could be considered to be “on the risk” for purposes of imposing liability for the claimant’s medical benefits.
Like Martinez the evidence in this record is subject to conflicting inferences concerning the cause of the claimant’s need for future treatment. The ALJ resolved the conflicts against the respondents and determined that the claimant’s employment at McDonald’s did not cause, aggravate or accelerate the claimant’s disease. Because, the ALJ’s determination is supported by the substantial evidence in the record, it is binding on review. (Tr. pp. 17, 18, 22, 31, 32); Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Therefore, it is immaterial that the record contains some evidence, which if credited, might support a contrary result. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (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 testimony or contrary inferences).
Furthermore, the ALJ’s determination that the need for future medical treatment is not attributable to the claimant’s employment at McDonalds, supports a conclusion that the respondent-insurer is the insurer “on the risk” for the claimant’s continuing medical benefits. Therefore, the ALJ did not err in ordering the respondents to provide future medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated, August 8, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed __________________ to the following parties:
Eveli Strassle, P. O. Box 953, Delta, CO 81416
White House Skyland, P. O. Box 2040, Winchester, VA 22604
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Gudrun Rice, Esq., P. O. Box 3207, Grand Junction, CO 81502
(For Claimant)
Raymond A. Melton, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
(For Respondents)
BY: _______________________