ORDER OF REMAND

The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ), which determined that the respondents are not liable for medical benefits. We set the order aside and remand for entry of a new order.

The issue in this case is whether the respondents are liable to pay for a finger surgery recommended by the claimant's treating physician, Dr. Fry. The ALJ found that, on July 25, 1991, the claimant was employed by respondent Storage Technology Corporation (Storage Tech). On that date the claimant reported an occupational disease involving "pain and locking in his right long finger." The ALJ found that the nature of this disease was "an aggravation" of pre-existing avascular necrosis.

Subsequently, the claimant quit working for Storage Tech and commenced work for Sears. The ALJ found that the Sears job required the claimant to perform "certain duties which involved use of his hand."

The ALJ then quoted at length from Dr. Fry's clinical notes and deposition testimony. The ALJ noted that, in December 1992, Dr. Fry opined that the claimant was at maximum medical improvement (MMI) for the July 1991 disease. However, the ALJ also found that, in June 1993, the claimant and Dr. Fry discussed the possibility of surgery on the claimant's finger. Nevertheless, the claimant declined surgery and in August 1993 Dr. Fry "reiterated" that the claimant was at MMI.

In March 1994, the claimant returned to Dr. Fry and reported a worsening of condition involving more swelling and more severe symptoms. X-rays revealed what Dr. Fry described as a "slight change" involving the size and shape of a calcification, and some spurring on the "ulnar little finger side of the joint." Dr. Fry opined that this "worsening of condition" was, to a reasonable degree of medical probability, related to the claimant's employment at Sears. The ALJ found that Dr. Fry's opinions are "persuasive."

The ALJ was asked to determine whether the respondents are liable for finger surgery which the claimant now desires. Relying on Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986), the ALJ concluded that the proper legal test to resolve the issue is whether or not the claimant sustained a "last injurious exposure" to his occupational disease while employed by Storage Tech, or by Sears. The ALJ found that the claimant's employment at Sears would have been sufficient to cause the occupational disease over a prolonged period of time, and therefore, found that the Sears job constituted the last injurious exposure. Under these circumstances, the ALJ concluded that the respondents are not liable for the surgery because they will not be "on the risk" at the time of the surgery is performed.

On review, the claimant advances two related arguments. First, the claimant argues that the evidence demonstrates that claimant's need for surgery is causally connected to the 1991 occupational disease. Therefore, the claimant reasons that his work at Sears could not have constituted the "last injurious exposure" to the occupational disease. Because we believe the ALJ misapplied the law, and the findings are insufficient to resolve the pertinent issue, we remand for entry of a new order. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).

Section 8-41-304(1), C.R.S. (1995 Cum. Supp.) provides that where "compensation is payable for an occupational disease," the employer or insurer in whose employment the claimant was "last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof" is "solely liable" for the disease. As the ALJ correctly recognized, a "last injurious exposure" exists when the claimant is exposed to "a concentration" of the hazard which would be sufficient to cause the disease over a prolonged period of time. There is no requirement that a last injurious exposure actually cause the disease. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).

However, in Royal Globe Insurance Co. v. Collins, supra, our Supreme Court held that the term "compensation," as used in the predecessor to § 8-41-304(1), does not include medical benefits, but refers only to disability compensation. The court's remarks were as follows:

"Given the General Assembly's differing treatment of compensation benefits and medical benefits, we conclude that the last injurious exposure rule of § 8-51-112(1) applies only to compensation benefits; the insurance carrier on the risk at the time medical expenses are incurred is liable for payment of those expenses." 723 P.2d at 736.

Here, unlike the situation in Royal Globe, the claimant has not yet incurred the medical expenses (surgery by Dr. Fry) which are the subject of the dispute. Further, there is a factual dispute as to whether the Sears employment has caused the need for treatment. Consequently, we must determine whether the respondents can be considered to be "on the risk" for purposes of Royal Globe.

Since Royal Globe holds that the last injurious exposure rule does not apply to claims for medical benefits, we believe that liability for medical benefits must be determined under the usual rules governing liability for workers' compensation benefits. Put another way, the insurer "on the risk" when medical expenses are incurred is the insurer which insured the employer whose conditions caused the need for treatment. Therefore, in order to impose liability for medical benefits on a particular employer or insurer, the claimant must demonstrate that the employment caused, aggravated, or accelerated the claimant's disease. Further, the claimant must show that the need for the medical treatment was caused by the disease, acceleration or aggravation in dispute. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).

This conclusion is not inconsistent with the result reached in Royal Globe Insurance Company v. Collins, supra. In Royal Globe, it was undisputed that the medical expenses which the claimant incurred prior to January 1, 1978, while Potomac Insurance Company was on the risk, were causally connected to the claimant's occupational disease. It also appears to be undisputed that the medical expenses incurred after January 1978, while Royal Globe was on the risk, were attributable to the ongoing effects of the occupational disease.

Here, in contrast, the claimant disputes whether or not the need for surgery is causally connected to the "aggravation" of his condition sustained while he was employed by Sears. In our view, the evidence is susceptible to conflicting inferences in this regard, particularly since Dr. Fry's recommendation for surgery apparently occurred prior to the claimant's worsening of condition in March 1994.

The ALJ did not expressly resolve whether the claimant's need for surgery was caused by his condition as it existed prior to December 1992, or whether it came about as a result of an "aggravation" at Sears. On remand, the ALJ shall make this factual determination and assign liability for the surgery in accordance with the views set forth in this order.

IT IS THEREFORE ORDERED that the ALJ's order, dated November 9, 1994, is set aside, and the matter is remanded for the entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ David Cain

___________________________________ Bill Whitacre

Copies of this decision were mailed August 31, 1995 to the following parties:

Robert D. Martinez, 10750 W. 8th Ave., Apt. #1, Lakewood, CO 80215

Storage Technology Corporation, Attn: Barbara Melton, 8270 S. 88th St., Louisville, CO 80228

St. Paul Fire and Marine Insurance Company, Attn: Becky Brown, P. O. Box 441565, Aurora, CO 80044-1565

Christopher Dominick, Esq. and Michael G. Sawaya, Esq., 1650 Emerson St., Denver, CO 80218

(For Claimant)

David J. Dworkin, Esq., 950 S. Cherry St., #1502, Denver, CO 80222

(For Respondents)

By: _________________________