W.C. Nos. 4-779-747, 4-773-747.Industrial Claim Appeals Office.
October 2, 2009.
FINAL ORDER
The respondent Hartford Fire Insurance Company (Hartford) seeks review of an order of Administrative Law Judge Mottram (ALJ) dated May 15, 2009, that denied and dismissed a claim against Zurich North America (Zurich) and ordered Hartford to pay for the reasonable, necessary and related medical treatment provided by authorized providers to treat the claimant’s occupational disease. We affirm.
The claimant began work as a dental hygienist for the employer in 1992. The claimant suffered an occupational disease with a date of onset of June 15, 2005. The Hartford insured the employer for the period of the claimant’s employment up to October 26, 2007. Zurich provided insurance coverage for the employer beginning October 26, 2007 and continuing.
The ALJ found that the claimant began to suffer an increase in her symptoms as a result of the June 15, 2005 occupational disease beginning in June 2007. The ALJ found that the worsening of the claimant’s symptoms continued through the summer of 2007. The ALJ found that there was no substantial and permanent aggravation of the claimant’s medical condition after October 26, 2007. The ALJ found the claimant’s current need for medical treatment is the direct result of the natural progression of the claimant’s June 2005 occupational disease. The ALJ found the Hartford to be liable for the claimant’s medical treatment.
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I.
The Hartford appeals, first contending that because the only issue for determination was medical benefits the ALJ erred in considering whether the claimant sustained a “substantial permanent aggravation” of her occupational disease while employed by the employer. The Hartford argues that the ALJ was simply required to determine whether the employment during the period of coverage by Zurich caused aggravated or accelerated the need for treatment in accordance with the ordinary rules of causation. We are not persuaded that the ALJ committed reversible error.
Section 8-41-304(1), C.R.S. 2009, provides, in relevant part, as follows:
Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.
However, the “last injurious exposure” rule does not govern the assignment of liability for medical benefits necessitated by an occupational disease. Liability for those benefits is, instead, placed upon the carrier “on the risk” at the time such expenses are incurred. Royal Globe Insurance Co. v. Collins, 723 P.2d 731, 733 (Colo. 1986); University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637, 2001 (Colo. App. 2001).
The Panel in a series of cases, determined that an insurer is “on the risk” for purposes of medical benefits only if, under the “ordinary rules of causation” applicable in workers’ compensation cases, it is established that during the coverage period the conditions of employment caused, aggravated, or accelerated the need for medical treatment. E.g. Barbour v. SOS Staffing Services, Inc., W.C. No. 4-364-807 (December 29, 1999), aff d., Barbour v. Industrial Claim Appeals Office, Colo. App. No. 00CA0086, October 12, 2000 (not selected for publication); Rigdon v. Doubletreee Hotels, W.C. No. 4-175-649 (March 18, 1996).
The respondents argue that the ALJ misinterpreted Royal Globe Insurance Co. v. Collins, supra and University Park Care Center v. Industrial Claim Appeals Office. We disagree.
Here the ALJ specifically and correctly cited the relevant legal principles from Royal Globe Insurance Co. v. Collins, an University Park Care Center v. Industrial Claim Appeals Office. In addition, the ALJ found that the claimant’s need for medical
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treatment was the result of her June 15, 2005 occupational disease. The ALJ found that her need for medical treatment was exacerbated by her employment duties during June through August 2007, a period of time when the Hartford insured the employer. Moreover, the ALJ credited the opinions of Dr. Weber and Dr. Silva in deciding that the claimant’s current need for medical treatment was the direct result of the natural progression of the claimant’s June 2005 occupational disease.
In our view these findings by the ALJ demonstrated that he applied the correct legal standard in deciding which insurer was “on the risk” for purposes of medical benefits. It appears to us that the ALJ following the “ordinary rules of causation” determined that during the coverage period by Zurich the conditions of employment did not cause, aggravate, or accelerate the claimant’s need for medical treatment.
Further, the ALJ’s determination that there was no substantial and permanent aggravation of the claimant’s medical condition during the coverage period by Zurich is consistent with finding under the ordinary rules of causation that Zurich was not liable for the claimant’s medical treatment. Additionally the issue of the claimant’s right to certain temporary disability benefits was raised initially by the claimant. Tr. at 15. Temporary disability benefits would be “compensation” that would be governed by the rule of whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation. Section 8-41-304(1). We do note that the issue of temporary disability benefits appears to have been excluded from consideration at a later point in time at the hearing. Tr. at 24. Under these circumstances, we cannot say that a mention of substantial permanent aggravation in the order was inappropriate and we perceive no reversible error.
II.
Hartford also argues that the repetitive and awkward work activities through and beyond October 26, 2007 caused aggravation of her neck, shoulder, thoracic and headache complaints. The respondents cited evidence that the claimant’s reduction in work hours beginning January 1, 2008 and the imposition of work restrictions for the first time on November 18, 2008 establish that her occupational disease was aggravated requiring her to seek and receive medical treatment after October 26, 2007. Hartford argues that Zurich was on the risk at the time medical benefits were incurred and so is liable for all medical benefits after October 26, 2007. In effect, Hartford argues that the ALJ’s order is not supported by the facts.
The question of whether there is a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. See City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must
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uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2009. The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
The ALJ made the following findings of fact with record support. Dr. Silva opined that the claimant’s current symptoms and condition would be considered a natural progression of the June 2005 work injury. Exhibit 20 at 187-88. Dr. Weber agreed with Dr. Silva’s explanation of the progression of the patient’s condition. Exhibit AA. Dr. Weber opined that the claimant did not sustain a new injury in October 2007 but her increasing symptoms were noted on June 28, 2007 and had continued, leading to self-imposed reduction of hours at work. Exhibit AA. Dr. Weber noted that the claimant suffered from an occupational disease and her symptoms were temporally related to working hours, and working a longer shift leading to increasing symptoms. Exhibit AA. The ALJ found the opinions of Dr. Weber and Dr. Silva were persuasive. The ALJ credited the testimony of the claimant that beginning in 2007 because of her work injury she began reducing her hours at work. Tr. at 40. The ALJ found that the claimant suffered an increase in her symptoms beginning in June 2007 and the worsening of her symptoms continued through the summer of 2007. Exhibit 12 at 57; Tr. at 87-88. The ALJ concluded that claimant’s worsening of her symptoms was the natural progression of her June 15, 2005 disease and that the claimant’s worsening of her symptoms continued through the summer of 2007. We note this was during the period of coverage provided for by Hartford. The ALJ ordered that Hartford pay for necessary and reasonable medical treatment. In our opinion, this determination was supported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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ABIGAIL TARR, DURANGO, CO, (Claimant).
ELYSE KLINGENER, DMD, DURANGO, CO, (Employer).
HARTFORD FIRE INSURANCE COMPANY, Attn: VALERIE BURKE, C/O: and ZURICH NORTH AMERICA, COLORADO SPRINGS, CO, (Insurer).
CRANE TEJADA, PC, Attn: BETHIAH B. CRANE, ESQ., DURANGO, CO, (For Claimant).
THE LAW OFFICES OF SCOTT TESSMER, Attn: SCOTT TESSMER, ESQ., ENGLEWOOD, CO, (For Respondents).
THE KITCH LAW FIRM, Attn: MICHELLE PRINCE, ESQ., EVERGREEN, CO, (Other Party).
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