Opinion
W.C. Nos. 4-237-762, 4-429-267
May 23, 2002
FINAL ORDER
ABC Rail Corporation (ABC) and its insurer, Zurich Insurance Company (collectively the Zurich respondents) seek review of an order of Administrative Law Judge Mattoon (ALJ) which dismissed Reliance Insurance Company (Reliance) and held the Zurich respondents responsible for injuries sustained by the claimant in the quasi-course of employment. We reverse.
In 1994 the claimant suffered admitted injuries. At the time of the injuries, the employer was insured by Reliance. Reliance filed a Final Admission for the payment of permanent partial disability benefits and future medical benefits with Dr. Hardy. On July 9, 1999, the claimant suffered disabling injuries in a motor vehicle accident while traveling to a medical appointment with Dr. Hardy.
The claimant filed a workers compensation claim for the new injuries. Zurich Insurance Company, who was the employer's workers' compensation carrier as of July 9, 1999, denied liability.
Based upon the "quasi-course of employment" doctrine, the ALJ found the July 9, 1999 injuries are compensable. Furthermore, relying on Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, 964 P.2d 591 (Colo.App. 1998) and our conclusions in Connell v. Price Mine Service Inc., W.C. No. 4-347-510 et al, (February 14, 2001), the ALJ determined the July 9 injuries form the basis for a second workers' compensation claim. Consequently, the ALJ dismissed the claim against Reliance and ordered the Zurich respondents to pay all medical and temporary total disability benefits awarded on account of the July 9 injuries.
On review the Zurich respondents concede the July 9 injuries are compensable under the quasi-course of employment doctrine. However, the Zurich respondents contend the ALJ and the Industrial Claim Appeals Panel (Panel) have misconstrued Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, supra, to hold that a quasi-course of employment injury provides the basis for benefits in a second workers' compensation claim. We agree, and therefore, reverse the ALJ's order.
Under the quasi-course of employment doctrine, injuries received while undergoing authorized medical treatment for an industrial injury are considered compensable even though they occur outside the ordinary time and place limitations of "normal employment." Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993). The rationale for this doctrine is that because the employer is required to provide reasonable and necessary medical treatment, and the claimant is required to submit to it or risk suspension or termination of benefits, treatment by the physician becomes an implied part of the employment contract. See Employers Fire Insurance Co. v. Lumbermen's Mutual Casualty Co., supra; Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). In fact, the quasi-course of employment doctrine is designed to attenuate the usual requisites of compensability.
In Employers Fire Insurance Co. v. Lumbermen's Mutual Casualty Co., supra, the claimant suffered injuries during a motor vehicle accident on the way to obtain authorized medical treatment for a work-related injury. The PIP carrier brought a subrogation action against the workers' compensation carrier for benefits paid as a result of the injuries sustained in the motor vehicle accident. However, the claimant had already settled the work-related injury claim. The Employers 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. Lumbermen's Mutual Casualty Co., 964 P.2d at 593. Thus, in Employers the court concluded that the 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.
Relying on the court's conclusions in Employers , City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997) ( Ballinger); and Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994); the Panel has issued a series of decisions beginning with Fischer-Muck v. Interim Healthcare of Southeastern Colorado, W.C. No. 4-113-829 et. al (January 31, 2000) (Examiners Cain and Halsey concurring, Examiner Dean dissenting) which hold that injuries sustained while traveling to and from authorized medical treatment give rise to a new claim for benefits. Because, we disagree with the majority opinion in Fischer-Muck we conclude the ALJ erroneously held the Zurich respondents responsible for the claimant's quasi-course injuries.
In the view of Professor Larson proximate and natural consequences of an industrial injury and "quasi-course of employment" injuries are both considered to be within the range of compensable consequences of the "primary" (original industrial injury). 1 Larson's Workers Compensation Laws, § 10.01 et. seq. (1999). As such, these injuries are distinguished from injuries caused by a separate, efficient intervening event. Injuries during travel to authorized medical treatment are compensable consequences of the primary injury and not attributable to a separate causative factor. It follows that we do not believe the quasi-course of employment doctrine was created to give rise to "new claims." Rather, the quasi-course of employment doctrine was created to describe the potential range of compensable consequences stemming from the underlying industrial injury.
Furthermore, the majority opinion in Fischer-Muck does not create a clear or rational distinction between those injuries which occur during medical treatment required by the primary injury and medical complications from treatment of the primary injury. To the contrary , there is no logical distinction, for purposes of determining benefits and liabilities, between a claimant who suffers pneumonia as a proximate result of a compensable chest injury, and a claimant who sustains additional injuries while on his way to the doctor's office for treatment of the underlying workers' compensation injury. Both events are, for purposes of workers' compensation law, compensable only because of their relationship to the underlying workers' compensation injury.
Accordingly, we conclude that quasi-course injuries should not be treated any differently, for purposes of determining benefits and liabilities, than complications which are said to be the natural and proximate results of the underlying industrial injury. Eg., Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). The artificial importing of tort conceptions of proximate cause into the distinct, statutory realm of workers' compensation law can only result in distorted results for both claimants and respondents such as the holding in Connell v. Price Mine Services Inc., W.C. No. 4-347-510 et. al (February 2, 2002) (where workers' compensation coverage expired prior to date former employee suffers quasi-course of employment injury during travel to authorized medical treatment, uninsured employer solely responsible for the new injuries).
Moreover, the court has not previously resolved the exact issue presented on review in this case in a published decision and the published decisions which relate to this issue are either factually or legally distinguishable from the specific facts presented here. See Walsh Healthcare Center v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1539, May 27, 1999) (not selected for publication). In City of Colorado Springs v. Industrial Claim Appeals Office, supra, the claimant sustained a back injury and reached maximum medical improvement (MMI) on 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 Ballinger a division of the court questioned the Panel's characterization of the shoulder injury as a "worsening" of the back injury. 954 P.2d at 640. However, the court did not determine and was not asked to determine whether the shoulder injury was only compensable under a separate claim. Consequently, the court's discussion of the shoulder injury as a "second injury" is pure dicta. In fact, the Ballinger court recognized that the fact the "second" injury resulted from treatment for the first injury may require that the permanent impairments be considered together.
In Citadel Mall v. Industrial Claim Appeals Office, supra, the court reversed our conclusion that injuries sustained during an on-the-job training program designed to rehabilitate the claimant from the effects of a prior industrial injury are compensable components of the original industrial injury and not a second, separate injury for purposes of imposing Subsequent Injury Fund liability. The Citadel Mall court held that because the later injury occurred during a second and subsequent employment relationship, the second injury is not compensable in the first injury claim. Citadel Mall reflects the court's conclusion that where the claimant's injuries are the result of a separate, new employment relationship the injuries constitute a separate workers' compensation claim.
Here, unlike the facts in Citadel there was no new employment relationship created and the claimant was injured during travel to authorized medical treatment. Thus, Citadel Mall is factually distinguishable.
For similar reasons, Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994) is not authority to the contrary. In Platte Valley the court held that where the claimant suffers successive industrial injuries, the average weekly wage for a second injury shall be based on the claimant's wages at the time of the second injury. Unlike the facts presented here, the claimant in Platte Valley did not suffer a "second injury" in the "quasi-course of employment" from the original industrial injury. Instead, she suffered an injury arising out of her reemployment with a new employer after the earlier injury.
Finally, Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, supra, is legally distinguishable from the issue presented here. The Employers court reasoned that the claimant's new injuries during the motor vehicle accident to obtain authorized treatment for a previous industrial injury would have provided the basis for a second claim. However, the automobile accident had no causal relationship to the claimant's employment except that it occurred while obtaining treatment for a prior industrial injury. Under these circumstances, the basis for the court's conclusion that the accident would have supported a new claim is unclear. In any case, the Employers court did not purport to determine whether, under the circumstances presented here, the claimant has suffered two separate injury claims. Rather, the court limited its determination to "the issue presented before us." 974 P.2d at 594.
Here, the only causal connection between the claimant's employment and the July 9 injuries is that the motor vehicle accident occurred as a result of medical treatment ABC and Reliance were legally required to provide to treat the 1994 industrial injuries. Therefore, the ALJ erroneously failed to hold Reliance responsible for the workers' compensation benefits due on account of the July 9 injuries.
In view of our disposition we need not consider Zurich's further arguments in support of its contention that Reliance is legally responsible for the July 9 injuries.
IT IS THEREFORE ORDERED that the ALJ's order dated May 4, 2001, is reversed insofar as it dismissed the claim against Reliance and held the Zurich respondents liable for the July 9 injuries. Reliance shall pay temporary total disability benefits from July 20, 1999, to August 29, 1999 and shall provide reasonable and necessary medical benefits to treat the July 9 injuries.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2001. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 23, 2002 to the following parties:
William Manzanares, 27 Clemson Dr., Pueblo, CO 81005
ABC Rail Corporation, P. O. Box 74, Pueblo, CO 81002
Zurich Insurance Company, Debbie McDermott, Cunningham Lindsey Claim Management, Inc., 7430 E. Caley Ave., #115, Englewood, CO 80111
Reliance Insurance Company, Ondrea Charles, GAB Robins North America, Inc., P. O. Box 370750, Denver, CO 80237
Andrew Gorgey, Esq., 105 E. Moreno Ave., #101, Colorado Springs, CO 80903 (For Claimant)
Richard L. Susman, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents ABC Rail Corporation and Zurich Insurance Company)
Royce W. Mueller, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents ABC Rail Corporation and Reliance Insurance Company)
BY: A. Hurtado