W.C. No. 4-486-960 4-487-243Industrial Claim Appeals Office.
December 24, 2002
FINAL ORDER
In these consolidated workers’ compensation claims the claimant seeks review of a Supplemental Order of Administrative Law Judge Jones (ALJ) insofar as the order denied a petition to reopen and dismissed a claim. The claimant argues the ALJ erred in denying benefits because the claim was never closed and a petition to reopen was not necessary. We set aside a portion of the order and remand for the entry of a new order. The order is otherwise affirmed.
The facts in these consolidated cases may be summarized as follows. In December 1999 the claimant was employed by respondent OEA, Inc. (OEA), as insured by New Hampshire Insurance Company (collectively the New Hampshire respondents). On August 1, 2000, the claimant became employed by respondent Autoliv ASP, Inc. (Autoliv), as insured by respondent Travelers Indemnity Company (collectively the Travelers respondents). However, the claimant’s place of employment did not change.
In October or November 1999 the claimant’s duties were altered and he was required to work at machines requiring substantial twisting, bending and standing. On December 17, 1999, the claimant experienced the sudden onset of right hip pain, and low back pain developed shortly thereafter. The claimant filed a claim for benefits which was assigned W.C. No. 4-487-243.
The ALJ found, based on the claimant’s testimony and medical evidence, that the duties of the claimant’s employment caused a preexisting degenerative joint disease of the hip and low back to become symptomatic. Therefore, the ALJ concluded the claimant sustained an occupational disease while employed by OEA.
In February 2000, a treating physician released the claimant to regular employment. However, whenever the claimant returned to work requiring sustained standing he would experience symptoms. Consequently, the claimant was assigned light duty work until October 2000, when Autoliv again assigned the claimant to duties which required substantial standing, bending and twisting. The claimant experienced an increase in symptoms and Autoliv returned him to light duty.
In October 2000 the claimant filed a second claim for benefits, which was assigned W.C. No. 4-486-960. The claimant testified he filed the second claim because he had a new employer (Autoliv) and insurance company, not because he believed that he sustained a new injury.
On December 22, 2000, the claimant was examined by Dr. Katz. Dr. Katz placed the claimant at maximum medical improvement (MMI) and assigned an impairment rating of 7 percent of the whole person.
At some point in time, the claimant filed a petition to reopen W.C. No. 4-487-243. At the hearing, claimant’s counsel explained that the petition to reopen was filed because the New Hampshire respondents paid some medical expenses without filing an admission of liability, then subsequently filed a Notice of Contest. Counsel for the New Hampshire respondents stated that there was no admission of liability for the alleged injury of December 1999. (Transcript pp. 7-9).
As noted, the ALJ’s Supplemental Order contains a finding that the claimant sustained an occupational disease while employed by OEA. However, the ALJ also found that in December 2000, when the claimant was placed at MMI, he had much the same symptoms as existed in December 1999. Under these circumstances, the ALJ denied the petition to reopen W.C. No. 4-487-243 because the claimant failed to prove a worsened condition causally connected to the December 1999 occupational disease. Instead, the ALJ found the claimant is “enduring a natural progression of a preexisting disease process.”
The ALJ also denied the claim in W.C. No. 4-486-960. This determination was apparently based on the ALJ’s finding that the claimant did not prove a “new injury” in October 2000 or a substantial permanent aggravation of his condition while employed by Autoliv.
On review, the claimant contends the ALJ erred in denying and dismissing W.C. No. 4-487-243 based on the finding that he failed to prove a worsening of condition. The claimant reasons that because this claim was never “closed,” he was not required to reopen it in order to receive benefits. The New Hampshire respondents argue the ALJ’s order is interlocutory. In any event, they assert the ALJ found the claim for the December 1999 injury was not “compensable,” and that the claimant’s need for treatment and disability was not caused by the alleged injury. We conclude the matter must be remanded for entry of a new order concerning the claimant’s entitlement to benefits in W.C. No. 4-487-243.
Initially, we reject the New Hampshire respondents’ assertion that the ALJ’s denial of the petition to reopen and dismissal of W.C. No. 4-487-243
does not constitute a final order. Section 8-43-301(2), C.R.S. 2002, permits the filing of a petition to review an order which “denies a claimant any benefit.” The clear effect of the ALJ’s order is to deny the claimant any benefits for the occupational disease sustained in December 1999. Hence, the order is final and reviewable.
Next, we conclude the ALJ’s order represents a misapplication of the law with respect to reopening. Consequently, the matter must be remanded for entry of a new order. Section 8-43-301(8), C.R.S. 2002.
A claim may be closed by settlement, an order which resolves the claim, or an uncontested final admission of liability. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1992). Section 8-43-303(1), C.R.S. 2002, permits reopening of an “award” based on proof a change of condition. A change of condition refers to a change in the claimant’s physical or mental condition which is causally-related to the underlying industrial injury. Jarosinski v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0332, December 5, 2002). However, if a claim has not been closed, the claimant need not prove a change of condition in order to receive additional benefits. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Here, we agree with the claimant’s argument that there is no basis in the record for concluding that W.C. No. 4-487-243, the claim for the 1999 occupational disease, was ever “closed” so as to require reopening by proof of a worsened condition. The claim was never addressed by an order prior to the ALJ’s Supplemental Order, there was no settlement, and the New Hampshire respondents never filed an admission of liability. Indeed, they admitted on the record that they filed a notice of contest concerning compensability of the claim. Thus, contrary to the ALJ’s order, the claimant was not required to prove a worsened condition causally related to the December 1999 occupational disease in order to receive benefits based on that claim.
We are not persuaded by the New Hampshire respondents’ argument that the ALJ found the December 1999 occupational disease was not a “compensable” injury, or that the underlying disability and need for treatment was caused by the natural progression of the preexisting degenerative joint disease. To the contrary, the ALJ found the claimant’s symptoms in December 2000, when the claimant reached MMI, were much the same as they were in December 1999. This suggests that the permanent impairment found by Dr. Katz is causally related to the 1999 injury, not some worsened condition which may have intervened. In any event, the ALJ’s order indicates she failed to consider the claimant’s entitlement to benefits for the occupational disease because the claimant could not prove that any worsened condition was caused by the occupational disease. As we have held, the claimant was not required to make such a showing in order to receive additional benefits.
Of course, evidence concerning causation of the cause of the need for medical treatment or disability may be relevant to the claimant’s entitlement to benefits when these issues are considered on remand. We should not be understood as expressing any opinions on such causation issues because they are not currently before us.
The claimant’s petition to review also asserts the ALJ erred in failing to find a “new injury” in October 2000. However, the claimant did not brief this issue, and we understand the issue has now been abandoned. In any event, substantial evidence supports the ALJ’s conclusion, particularly the testimony of Dr. Roth. Similarly, the evidence supports the finding that there was no substantial permanent aggravation while the claimant was employed by Autoliv.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated January 24, 2002, is set aside insofar as it dismissed the request for workers’ compensation benefits in W.C. No. 4-487-243. The matter is remanded for a determination of the amount and type of benefits, if any, to which the claimant is entitled as a result of the occupational disease sustained while he was employed by OEA. The ALJ may, in her discretion, hold additional hearings to determine this issue, or she may rule on the record as presently constituted.
IT IS FURTHER ORDERED that the ALJ’s Supplemental Order is otherwise 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. 2002. 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 December 24, 2002 to the following parties:
John L. Welch, 2386 S. Linden Court, #4, Denver, CO 80222
Jim Welsh, OEA, Inc., P. O. Box 100488, Denver, CO 80250
Autoliv Asp, Inc., 34501 E. Quincy Ave., Aurora, CO 80016
Laura Glavich, Travelers Indemnity Company of Illinois, P. O. Box 173762, Denver, CO 80217-3762
New Hampshire Insurance Company, c/o Rusty Pinckney, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Jordan S. Levine, Esq., 1490 Lafayette St., #203, Denver, CO 80218 (For Claimant)
Lawrence D. Blackman, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents Autoliv ASP, Inc. and Travelers Indemnity Company of Illinois)
W. Berkeley Mann, Jr., Esq., and Margaret R. Curry, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents OEA, Inc. and New Hampshire Insurance Company)
By: A. Hurtado