Opinion
W.C. Nos. 4-347-510, 4-428-324
February 14, 2001
ORDER OF REMAND
Respondents Price Mine Service, Inc. (Price Mine) and its workers' compensation insurer, TIG Insurance Co. (TIG), seek review of two orders of Administrative Law Judge Martinez (ALJ) holding them liable for temporary total disability benefits subsequent to February 16, 2000. Price Mine and TIG contend benefits after February 16 are the result of an industrial injury for which respondents Rocky Mountain Miners (Rocky Mountain), and its workers' compensation insurer, National Union Fire Insurance Co. (National Union), are liable. We affirm the orders in part, reverse them in part, and remand for entry of a new order.
On July 7, 1997, the claimant was employed by Price Mine. He sustained compensable injuries to his left eye, nose, teeth, neck, right arm, back, and right knee and heel when a hose broke. TIG admitted liability for this injury. The claim is numbered W.C. No. 4-347-510.
Following the July 7 injury, the claimant never returned to work for Price Mine, and the ALJ found he was totally unemployed in 1998 and 1999. In August 1998, Price Mine ceased most of its business operations, although it continued in existence as a real estate holding company. Price Mine's employees were transferred to Rocky Mountain.
In January 1999, the claimant underwent surgery to his right knee. The surgery was necessitated by the 1997 injury. On April 14, 1999, the claimant was involved in a motor vehicle accident when returning home from an authorized medical visit secondary to the January 1999 surgery. In the automobile accident, the claimant aggravated the previous injuries to his neck and back, and sustained "new injuries" to his left shoulder and elbow. A second claim, W.C. No. 4-428-324, was filed against Rocky Mountain and National Union for injuries sustained on April 14. On February 16, 2000, TIG terminated temporary total disability benefits on the ground the claimant reached maximum medical improvement (MMI) from all injuries caused by the July 7 accident.
In an order dated January 21, 2000, the ALJ concluded the injuries which the claimant sustained in the April 1999 automobile accident are compensable under the "quasi-course of employment" doctrine. Further, the ALJ held that Price Mine and TIG are liable for these injuries. In so doing, the ALJ distinguished Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d 591 (Colo.App. 1998), stating that neither this case, nor any other, purports to impose "liability for the subsequent injury on any insurer other than the insurer on the risk at the time of the original compensable injury." The ALJ also dismissed the claim against Rocky Mountain and National Union, W.C. No. 4-428-324, finding the claimant was never employed by Rocky Mountain. In an order dated August 17, 2000, the ALJ found the claimant underwent surgery for his left shoulder on March 30, 2000, and has not been placed at MMI or released to return to work. Thus, the ALJ ordered respondents Price Mine and TIG to reinstate temporary disability benefits commencing February 17, 2000.
I.
On review, respondents Price Mine and TIG argue the ALJ erred insofar as he concluded the April 1999 automobile accident did not constitute a compensable event separate from the July 1997 injury. According to these respondents, Price Mine cannot be liable for the April 1999 injury because it no longer employed the claimant, and TIG cannot be liable because it no longer insured Price Mine. We agree TIG may not be held liable, but disagree as to Price Mine.
In Fischer-Muck v. Interim Healthcare of Southeastern Colorado, W.C. No. 4-113-829 (January 31, 2000) (Examiners Cain and Halsey concurring, Examiner Dean dissenting), and Ferrenburg v. Best Western Landmark Hotel, W.C. No. 4-357-688 (December 22, 2000), we held that injuries sustained in motor vehicle accidents when traveling to or from authorized medical treatment give rise to a new claim for benefits, and the injuries sustained are not a compensable consequence of the prior industrial injury. The result in these cases was primarily based on the Court of Appeals decisions in Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., supra, and City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). The following comments from the Ferrenburg decision are pertinent:
In Employers Fire Insurance, the court distinguished between injuries which result from a "weakened condition" caused by an initial industrial injury, and injuries sustained while going to or coming from authorized medical treatment. The court noted that if additional injuries result from a "weakened condition" stemming from the original industrial injury, the additional injuries are compensable because they are a natural, albeit not necessarily direct, result of the original injury. In contrast, injuries sustained when a claimant is traveling to or from authorized treatment are compensable not because they were "caused" by the prior industrial injury, but "because the law requires an employer to furnish such [medical] services to the employee, and as a result, the journey to and from the physician's office is considered to be part of the employment." Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d at 593. Thus, the court in Employers Fire Insurance concluded that an injury which the claimant sustained while traveling to the office of an authorized physician "would have provided the basis for a second claim" and "was not a part of [the] first claim." Id. at 594.
In City of Colorado Springs v. Industrial Claim Appeals Office, supra, the claimant sustained a back injury and reached maximum medical improvement (MMI) on [sic] September 1993. Four months after reaching MMI, the claimant sustained an injury to his shoulder as a result of using an exercise machine to treat his back. In dicta, the court stated it was "difficult to understand how a separate injury to an entirely distinct body part, occurring more than one year after the first injury, can be considered to be a `worsening of condition' caused by the original injury." 954 P.2d at 640.
The ALJ's order notwithstanding, nothing in Employers Fire Insurance or City of Colorado Springs leads us to believe the of Court Appeals would treat a motor vehicle accident incurred when seeking authorized medical treatment as a distinct compensable event for some purposes, but view the motor vehicle accident as a compensable consequence of the original injury for purposes of insurance coverage. Neither the ALJ nor the parties point to any language in these cases, or cite any other case, which would indicate such a distinction.
It follows that we agree with TIG that it may not be held liable for any benefits solely attributable to the April 1999 automobile accident. The ALJ found, and it is not now disputed, that Price Mine was uninsured for workers' compensation on April 14, 1999. Therefore, TIG may not be held liable for a risk which it no longer covered. See State Compensation Insurance Fund v. Dean, 689 P.2d 1147 (Colo.App. 1984) (it is the policy of insurance, not the liability of the insured, which measures the liability of the insurer).
However, we disagree with Price Mine and TIG insofar as they argue Price Mine may not be held liable for the April 1999 injuries because the claimant was no longer "employed" by Price Mine. To the contrary, the entire purpose of the "quasi-course of employment" doctrine is to attenuate the ordinary time, place, and cause requirements inherent in compensability determinations. Further, because the employer is legally required to provide medical treatment to the injured employee, and the employee is required to submit to treatment in order to receive continuing benefits, travel to and from authorized medical treatment is an implied condition of the employment contract. Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993). Therefore, the claimant's travel to and from the doctor's office on April 14, 1999 was a contractual condition of his employment with Price Mine, regardless of whether the actual working relationship continued. Therefore, the ALJ's findings compel the conclusion that Price Mine is liable for any benefits due the claimant solely because of the April 1999 automobile accident.
We recognize this result may lead to hardship for claimants if they sustain a quasi-course of employment injury after an employer has gone out of business and the employer has not maintained or purchased workers' compensation insurance to compensate for such an eventuality. However, we believe this result is mandated by the previously cited Court of Appeals opinions, and we are not at liberty to fashion a remedy which is not prescribed in case law or established by statute. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995) (administrative tribunals which adjudicate workers' compensation claims are created by statute, and their jurisdiction, powers, duties, and authority are limited by statute). It may be that workers' compensation insurance policies should be designed to encompass quasi-course injuries when they result from an employer's duty to provide continuing treatment for workers' compensation injuries.
II.
Price Mine and TIG also argue that the evidence compelled the ALJ to find the claimant was employed by Rocky Mountain on April 14, 1999, and, therefore, National Union is liable for the claimant's benefits stemming from the automobile accident. We disagree.
An employee is defined as a person "in the service of any person, association of persons, firm, or private corporation, including any public service corporation, personal representative, an assignee, trustee, or receiver, under any contract of hire, express or implied." Section 8-40-202(1)(b), C.R.S. 2000. A contract of employment contemplates "competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation." Aspen Highlands Skiing Corp. v. Apostolu, 860 P.2d 1384 (Colo. 1994). The question of whether the contract has been formed is generally one of fact for resolution by the ALJ. Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966). Because the issue is one of fact, we must hold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
Here, the record contains substantial evidence to support the ALJ's determination that the claimant was never employed by Rocky Mountain. The claimant testified he did not know who Rocky Mountain was, and Mr. Carlton testified to his knowledge the claimant was never hired by Rocky Mountain. (Tr. January 5, 2000, pp. 25, 40). Further, Carlton testified that Price Mine hired the claimant on a temporary basis, and there was no guarantee of continuing work with Price Mine. Consequently, the ALJ was not required to infer the claimant remained employed by Price Mine more than one year after the July 1997 injury, and was then transferred to Rocky Mountain. Indeed, Carlton testified that although he had trouble recollecting, he was sure in his own mind the claimant was not transferred to Rocky Mountain. (Tr. January 5, 2000, p. 51).
Under these circumstances, the ALJ's orders must be reversed insofar as they held TIG liable for any workers' compensation benefits solely attributable to the April 14, 1999 injury. Further, the orders must be set aside insofar as they awarded temporary disability benefits based on the finding that the claimant sustained a single compensable industrial injury rather than two separate compensable injuries. The orders are affirmed insofar as they dismiss Rocky Mountain and National Union.
IT IS THEREFORE ORDERED that the ALJ's orders dated January 21, 2000, and August 17, 2000, are set aside insofar as they hold TIG liable for workers' compensation benefits attributable to injuries which the claimant sustained on April 14, 1999.
IT IS FURTHER ORDERED that the award of temporary total disability benefits is set aside insofar as it is based on the ALJ's determination that the claimant sustained a single compensable injury for which the claimant has not yet reached MMI. This order should not be construed as prohibiting the ALJ from awarding appropriate temporary total disability benefits based on our conclusion that the claimant sustained two compensable injuries, and the matter is remanded to the ALJ for a new determination of temporary total disability benefits.
IT IS FURTHER ORDERED that the ALJ's orders are affirmed insofar as they dismiss the claim against Rocky Mountain and National Union.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed February 14, 2001 to the following parties:
Lester Gary Connell, 832 College Ave., Canon City, CO 81212
Price Mine Service, Inc., P. O. Box 922, Price, UT 84501-0922
Rocky Mountain Miners, P. O. Box 922, Price, UT 84501
TIG Insurance Co., P. O. Box 17005, Denver, CO 80217
National Union Fire Insurance Co., AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Christopher Seidman, Esq., 101 S. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents Price Mine Service, Inc. and TIG Insurance Co.)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents Rocky Mountain Miners and National Union Fire Insurance Co.)
BY: A. Pendroy