Opinion
W.C. No. 4-348-316
July 10, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) insofar as it denied apportionment of the claimant's temporary total disability and medical benefits. The respondents argue that apportionment is proper under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), because the claimant suffers from an occupational disease partially caused by preexisting rheumatoid arthritis. Alternatively, the respondents assert that apportionment is proper on account of the claimant's prior back injury. We affirm.
The ALJ found that the claimant's "work activities" caused a "compensable injury or occupational disease on or about July 23, 1997." Relying on the testimony of the claimant and the claimant's treating physician, Dr. Tice, the ALJ determined that this injury "substantially permanently aggravated" the claimant's preexisting back condition so as to temporarily disable the claimant and cause the need for medical treatment, including surgery. (Conclusions of Law 1, 2, 7).
Concerning apportionment, the ALJ found the claimant sustained several prior back injuries, but returned to work after each injury. The last of these prior injuries occurred on September 13, 1996, when the claimant was employed by the respondent-employer. The ALJ also found that by November 20, 1996, the claimant was medically released to full duty.
In his deposition, Dr. Tice opined that the claimant's duties in July 1997 and a gradual worsening of condition caused by the September 1996 injury combined to aggravate the claimant's "underlying condition." However, Dr. Tice also testified that the July 1997 aggravation was the "proximate cause" of the claimant coming to see him in July 1997. (Tice depo. p. 16).
Under these circumstances, the ALJ concluded that the issue of "apportionment" is "premature." The ALJ reached this conclusion because the claimant is not at maximum medical improvement from the July 1997 aggravation, and § 8-42-104(2), C.R.S. 1997, does not permit apportionment of any benefits except permanent disability benefits.
I.
On review, the respondents contend the ALJ erroneously concluded that the issue of apportionment of temporary total disability and medical benefits is premature. The respondents argue that the ALJ implicitly found the claimant sustained an occupational disease due to the strenuous cleaning activities she performed in July 1997. Thus, the respondents reason that the claimant's temporary total disability and medical benefits are apportionable under Anderson v. Brinkhoff, supra, because the claimant had preexisting rheumatoid arthritis which "influenced" the need for treatment. Under the circumstances, we disagree.
We assume, arguendo, that the ALJ found the claimant suffers from an occupational back disease caused by her July 1997 work activities. Moreover, Anderson v. Brinkhoff apparently authorizes apportionment of temporary disability and medical benefits in cases of occupational disease. See Roberts v. Starpack, Inc., W.C. No. 4-188-242 (April 9, 1997) (facts in Anderson v. Brinkhoff reveal that apportionment was applied to all benefits, including medical benefits).
However, in this case, the ALJ's findings do not support apportionment of temporary disability and medical benefits under Anderson v. Brinkhoff. The Anderson court stated the following:
"The statute is equally clear in not requiring that hazardous conditions of employment be the sole cause of the disease or aggravation. Nevertheless, claimant is entitled to recover only if the hazards of employment cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought." 859 P.2d at 824.
The Anderson decision goes on to state that where an occupational exposure to a hazard is not a necessary precondition to the development of the disease, "the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." 859 P.2d at 825.
Here, the ALJ's findings establish that, even if the claimant had a preexisting and on-going disease process prior to July 1997, that process was not disabling independent of the July injury. To the contrary, the ALJ credited Dr. Tice's statement that, even if the claimant had rheumatoid arthritis which was a "pre-existing factor," the "cause for her deterioration and the need for her surgery was the activity associated with her work." (Finding of Fact 25). Moreover, the claimant was able to perform her regular housekeeping duties from April 13, 1996 through July 24, 1997. Therefore, the claimant's occupational disease is not subject to apportionment under Anderson v. Brinkhoff. See Simmons v. WCHS of Colorado, W.C. No. 4-222-793 (November 22, 1995).
II.
The respondents next contend that the ALJ should have apportioned temporary disability and medical benefits under State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985). In support, the respondents note that the claimant suffered from several back injuries prior to July 1997, and that Dr. Tice opined that the condition caused by the September 1996 injury had worsened and was a contributing factor in the claimant's overall disability. We perceive no error.
In State Compensation Insurance Fund v. Industrial Commission, supra, the Court of Appeals apportioned temporary disability and medical benefits between two insurers responsible for separate industrial injuries. In that case, both industrial injuries had worsened and were contributing causes to the claimant's disability and need for additional treatment. See also, Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997).
However, we view the holding in State Compensation Insurance Fund v. Industrial Commission as limited to the facts. The Workers' Compensation Act contains no provision authorizing apportionment of temporary disability and medical benefits between an industrial injury and preexisting conditions. Compare § 8-42-104(2) (authorizing apportionment of permanent disability benefits).
Nevertheless, disabling aggravations of preexisting conditions constitute compensable events. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). And, when compensability is established, our courts hold respondents liable to pay temporary total disability benefits if the claimant's post-injury wage loss is to some degree attributable to the industrial injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Similarly, respondents are liable for benefits which are reasonable and necessary to treat the effects of an industrial injury. See § 8-42-101(1)(a), C.R.S. 1997.
Thus, we read the holding in State Compensation Insurance Fund v. Industrial Commission as limited to situations where liability for temporary disability and medical benefits may be apportioned between multiple insurers responsible for sequential industrial injuries. The case cannot be read as authority for apportionment based on all preexisting conditions, especially where the effect of the apportionment would be to require the claimant to assume liability for his own temporary disability and need for medical treatment. See Allison v. City of Colorado Springs, W.C. No. 4-325-885 (June 18, 1998).
Here, the only evidence of a worsened condition caused by a prior industrial injury is Dr. Tice's testimony concerning worsening of the September 1996 injury. However, at the time of the 1996 injury the claimant was employed by the respondent-employer, and the employer was insured by the respondent-insurer. (See Petition to Reopen dated December 1, 1997: Final Admission of Liability dated January 24, 1997). Consequently, if State Compensation Insurance Fund v. Industrial Commission applies to these facts, the respondents would be apportioning liability to themselves. Such an apportionment would accomplish nothing, and we will not remand the matter to the ALJ to attempt it.
In any event, we agree with the claimant that the ALJ read Dr. Tice's testimony and reports to mean that the proximate cause of the claimant's need for treatment and disability was the July 1997 aggravation, not any worsening caused by the September 1996 injury. (Finding of Fact 25; Conclusions of Law 3, 4, 5). Although Dr. Tice's testimony and reports are subject to conflicting inferences and interpretations, the ALJ ultimately determined that the 1996 injury constituted a mere preexisting condition, not the actual and proximate cause of the claimant's disability and need for treatment. Because this interpretation is supported by substantial evidence, it must be upheld on review. Section 8-43-301(8), C.R.S. 1997; Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may resolve inconsistencies in medical testimony). Moreover, these findings negate any apportionment under State Compensation Insurance Fund v. Industrial Commission. IT IS THEREFORE ORDERED that the ALJ's order dated January 29, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (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 July 10, 1998 to the following parties:
Dorene G. Martin, 60502 Falcon Road, Olathe, CO 81425
Montrose Memorial Hospital, Kay Kirkland, 800 South Third St., Montrose, CO 81401
Montrose Memorial Hospital, 2140 S. Holly St., Denver, CO 80222-5602
Sharon Thompson, Support Services, Inc., P.O. Box 22438, Denver, CO 80222
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Andrew R. Bantham, Esq., 2629 Redwing Rd., Ste. 330, Ft. Collins, CO 80526 (For the Respondents)
By: _______________________