W.C. Nos. 4-165-022, 4-270-071Industrial Claim Appeals Office.
June 16, 1998
FINAL ORDER
The self-insured respondent, Poudre Valley Hospital (Poudre Valley), seeks review of a final order of Administrative Law Judge Erickson (ALJ), insofar as the order requires it to pay fifty percent of the claimant’s medical and temporary disability benefits after December 14, 1992. Respondents McKee Medical Center (McKee) and its insurer, Wausau Insurance Company (collectively Wausau respondents), seek review of the order insofar as it held them liable for fifty percent of the claimant’s temporary total and medical benefits. We affirm.
The claimant was employed by McKee as a medical transcriptionist when she sustained a compensable back injury on August 21, 1992. The claimant was treated for this injury by Dr. Pettine.
On December 14, 1992, Poudre Valley hired the claimant as a medical transcriptionist. The claimant commenced working approximately forty hours per week, while reducing her work at McKee to approximately eight hours per week. The claimant ceased work at McKee in May 1993. (Tr. pp. 39-40).
The ALJ determined that after the claimant commenced work at Poudre Valley, her cervical and thoracic back symptoms increased significantly. The claimant underwent cervical surgery in January 1994, and a thoracic fusion from T5 to T10 in November 1995.
Relying principally on the testimony and notes of Dr. Pettine, the ALJ found that the claimant’s worsened condition, which led to the two surgeries and related periods of disability, was causally connected to the August 1992 injury at McKee, as well as the claimant’s employment at Poudre Valley subsequent to December 14. Thus, accepting the apportionment proffered by Dr. Pettine, the ALJ required the Wausau respondents to pay fifty percent of the medical and disability benefits and Poudre Valley to pay the remaining fifty percent.
I.
On review, Poudre Valley argues that a “preponderance of the evidence” establishes the claimant’s worsened condition was solely the result of the August 1992 injury, and in no way connected to her employment at Poudre Valley. In support, Poudre Valley cites medical records indicating that some of the claimant’s cervical and thoracic symptoms were present prior to the time she went to work at Poudre Valley. Poudre Valley also relies on the claimant’s testimony that she believes her condition is connected to the August 1992 injury, as well as medical records which undermine Dr. Pettine’s opinion concerning apportionment. We find no error.
Initially, we agree with Poudre Valley that, regardless of whether the claimant’s worsened condition is analyzed as an occupational disease or an accidental injury, it was necessary to establish a causal connection between the condition and the claimant’s employment at Poudre Valley. Section 8-40-201(14), C.R.S. 1997; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The question of whether the requisite causal relationship was established was one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; City of Durango v. Dunagan, supra.
Because the standard of review is one of substantial evidence, we are in no position to reweigh the evidence and determine whether a “preponderance” of the evidence supports the ALJ’s result. To the contrary, we must accept the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Moreover, we must view the evidence in a light most favorable to the prevailing party. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In particular, we note the weight to be assigned expert medical opinion on the issue of causation is strictly within the ALJ’s purview as fact-finder Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Poudre Valley’s arguments notwithstanding, the record contains substantial evidence to support the ALJ’s determination that the worsening of the claimant’s condition, and her consequent disability and need for treatment, was partially caused by her employment as a medical transcriptionist at Poudre Valley. As the ALJ recognized, Dr. Pettine described the duties of a medical transcriptionist as a “terrible job” for the claimant because they put pressure on the cervical and thoracic area. (Pettine Depo. p. 30). He also testified that claimant’s medical history, the absence of any recommendation for surgery prior to the claimant’s employment with Poudre Valley in 1992, and the intensity of her symptoms after employment with Poudre Valley support his conclusion that the Poudre Valley job aggravated the August 1992 injury. (Pettine Depo. pp. 19-20).
It is true that contrary findings and conclusions were possible based on the evidence cited by Poudre Valley. However, the ALJ resolved the conflicts in the evidence against Poudre Valley, and we decline the invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from this record.
II.
Poudre Valley next contends the ALJ erred in failing to classify the aggravation of the claimant’s condition as an “occupational disease.” Poudre Valley asserts that, had the ALJ analyzed the aggravation as a disease, he would have been obliged to apply § 8-41-304(1), C.R.S. 1997, and determine whether the claimant sustained a “last injurious exposure” and “substantial permanent aggravation” of the disease while employed by Poudre Valley. We perceive no error.
The ALJ found the claimant was exposed to the hazardous conditions of the transcriptionist job at Poudre Valley for a long period of time after she ended work at McKee. Moreover, the ALJ found the claimant’s condition worsened substantially so as to require surgery. Thus, the ALJ implicitly determined, as a matter of fact, that the claimant sustained a last injurious exposure and substantial permanent aggravation while employed by Poudre Valley. Indeed, it is hard to imagine how the ALJ could have found that a last injurious exposure and substantial permanent aggravation attributable to the transcriptionist duties could have occurred at McKee. Cf. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
III.
The Wausau respondents contend the ALJ erred in apportioning the medical benefits and temporary disability benefits between them and Poudre Valley. The Wausau respondents argue that since the claimant sustained a compensable injury while employed by Poudre Valley, the ALJ was obliged to attribute all subsequent benefits to the aggravation. In support of this proposition, the Wausau respondents cite H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990), and Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989). We perceive no error.
The Wausau respondents correctly state that, under the cases cited, aggravation of a preexisting condition constitutes a compensable injury. Therefore, the ALJ correctly found the claimant’s worsened condition, which was causally connected to her employment at Poudre Valley, was compensable.
However, that conclusion is not dispositive of the question of apportionment of liability where two compensable industrial injuries have combined to contribute to an overall worsening of condition and need for treatment. In such circumstances, the Court of Appeals has held that apportionment of temporary disability benefits and medical benefits is appropriate. See State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985). We are in no position to depart from a published opinion of the Court of Appeals, and decline to do so here. C.A.R. 35 (f). See also Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997).
Dr. Pettine’s opinion supports the ALJ’s apportionment of medical and temporary disability benefits. Thus, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 5, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 16, 1998 to the following parties:
Elaine Waterfield, 1209 Sycamore Dr., Loveland, CO 80538
Poudre Valley Hospital, Attn: Teri Suhr, Benefits Analysis, Human Resources Dept., 1024 Lemay Ave., Ft. Collins, CO 80524
McKee Medical Center, 2000 Boise Ave., Loveland, CO 80538-5006
Sharon Thompson, Hospital Insurance Trust, P.O. Box 22438, Denver, CO 80222
Wausau Insurance Co., P.O. Box 419157, Kansas City, MO 64141-6157
William Sterck, Esq., 679 Grant St., Denver, CO 80203 (For Wausau Respondents)
Jeanne Stadler Drake, Esq., 2881 No. Monroe, #2, Loveland, CO 80538 (For the Claimant)
Gregory B. Cairns, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Poudre Valley Respondent)
By: __________________________________________________