W.C. No. 4-299-627Industrial Claim Appeals Office.
March 28, 2003
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded compensation for permanent total disability. We set aside the order and remand the matter for further proceedings.
The claimant sustained a compensable repetitive motion injury to her upper extremities. Dr. Price assigned a medical impairment rating for permanent impairment to the upper extremities, imposed permanent work restrictions, and recommended future medical treatment.
The ALJ found that as a result of the injury the claimant suffers headaches, neck pain, upper back pain, chest pain, pain in her shoulders, pain and numbness in her arms, pain and numbness in her hands, lack of grip strength in her hands, difficulty sleeping, irritability, concentration problems, and limited range of motion of the upper extremities and neck. The ALJ found that this symptomatology precludes the claimant from performing various activities of daily living which require fine motor skills such as cooking, using a keyboard, writing longhand, lifting, grocery shopping, and dressing.
The claimant’s vocational rehabilitation expert, Ron Brennen (Brennen), opined that the claimant is unemployable as a result of her physical limitations, chronic pain, depression and the side effects of medication prescribed to treat the injury. Crediting Brennen’s testimony the ALJ found the claimant sustained her burden to prove she is permanently and totally disabled. The respondents timely appealed.
On appeal the respondents contend, inter alia, that the medications which impair the claimant’s vocational functioning were not prescribed by an authorized treating physician and are not reasonably necessary to treat the industrial injury. Consequently, the respondents argue the ALJ erred in relying on evidence concerning side effects of that medication to support the finding of permanent total disability. We conclude the ALJ’s findings of fact are insufficient to permit review of this issue, and therefore we remand the matter for additional findings.
Under the applicable law, a claimant is permanently and totally disabled if the claimant is unable to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), 2002. To prove permanent total disability the claimant is not required to establish that an industrial injury is the sole cause of her inability to earn wages. However, the claimant must demonstrate that the industrial injury is a “significant causative factor” in her permanent total disability Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). In this regard, it is not sufficient that an industrial injury create some disability which ultimately contributes to permanent total disability. Rather, Seifried requires the claimant to prove a direct causal relationship between the precipitating event and the disability for which the claimant seeks benefits. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev’d on other grounds Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Conversely, evidence that the claimant’s permanent total disability is the result of an independent nonindustrial condition may establish that the industrial injury is not a significant causative factor. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327
(1934); Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo.App. 1984).
Here, the ALJ found the claimant utilizes a prescription narcotic for pain control called MS Contin, and a muscle relaxant called Neurontin, to alleviate her symptomatology from the industrial injury. (Finding of Fact 15). The ALJ also found the claimant has been diagnosed with depression secondary to the industrial injury for which the claimant takes anti-depressant medication and engages in psychological counseling. The ALJ determined that the medications impair the claimant’s ability to stay awake and concentrate, which in turn renders her unlikely to earn any wages.
It is undisputed that the MS Contin was prescribed by the claimant’s personal physician and was not authorized medical treatment for the industrial injury. However, authorization is a separate and distinct question from whether treatment is reasonably necessary. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). The respondents contend the MS Contin is not reasonably necessary to relieve the effects of the industrial injury, and that insofar as side effects of the MS Contin render the claimant unemployable, the claimant’s inability to earn wages is not the result of the industrial injury.
The ALJ did not make any specific findings of fact concerning whether the unauthorized medications are reasonable and necessary to relieve the effects of the industrial injury. Furthermore, the evidence is subject to conflicting inferences on the issue. For example, Dr. Price testified that the claimant’s use of 30 mg of MS Contin four times daily is” a bit much” and more than she would “feel comfortable” prescribing to alleviate the claimant’s pain symptoms. (Dr. Price depo. p. 39-40). However, in a medical report dated March 21, 2002, Dr. Price reported the claimant is “currently on the same medications she has been on,” including 30 mg of morphine four times daily. Dr. Price added “these are prescribed by Dr. Preston at the V.A. and I think this is an appropriate treatment and she should continue treating with him for these medications.”
Because the determination of whether the claimant proved the requisite causal relationship between her disability and the industrial injury is an issue of fact for resolution by the ALJ, we remand the matter to the ALJ to determine whether the prescription medications which cause the side effects that preclude the claimant from earning wages are reasonable and necessary to relieve the effects of the industrial injury. Based on that determination, the ALJ shall then redetermine whether the claimant sustained her burden to prove that the industrial injury is a significant causative factor in her permanent total disability, Seifried v. Industrial Commission, supra, and enter a new order concerning the claimant’s entitlement to permanent total disability benefits.
In view of this remand, we need not address the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 28, 2002, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed March 28, 2003 to the following parties:
Charlotte Kingery Stubbs, 105 Calloon Creek Ln., White Water, CO 81527
Choice Hotels International, 2697 Highway 50, Grand Junction, CO 81503-1935
Gale Frost, Gallagher Bassett Services, Inc., P. O. Box 151509, Austin, TX 78715
J. Keith Killian, Esq., Joanna C. Jensen, Esq., and Damon J. Davis, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy