Opinion
W.C. No. 4-022-733
December 27, 2000
FINAL ORDER
PREFERRED PROFESSIONAL INSURANCE COMPANY, Insurer, Respondent.
Respondent University Park Care Center (University Park) seeks review of an order of Administrative Law Judge Mattoon (ALJ) holding it liable for fifty percent of the claimant's temporary disability and medical benefits. University Park argues that because the claimant sustained an occupational disease apportionment of temporary disability and medical benefits is improper under principles discussed in Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986). In any event, University Park argues the evidence is insufficient to support the ALJ's apportionment. We affirm.
In April 1991, the claimant sustained a compensable back injury while employed as a licensed practical nurse (LPN) by University Park. In April 1996, the claimant's treating physician, Dr. Morgan, placed the claimant at maximum medical improvement (MMI) with a 15 percent whole person impairment rating. The claimant's diagnoses at that time were degenerative changes of the SI joint and moderately severe degenerative changes of the facet joints at L5-S1. An MRI performed in June 1995 revealed a slight disc protrusion at L3-L4 with a "loss of signal at L3-L4, L4-L5, and L5-S1." The claimant testified that she never "fully recovered" from the 1991 injury and continued to experience back and leg pain. (Tr. pp. 15-16).
In 1997, the claimant left University Park and began work as an LPN for respondent Villa Pueblo Towers (Villa Pueblo), insured by Preferred Professional Insurance Company (Preferred Professional respondents). The claimant's duties involved some bending and lifting which caused back pain. In 1999, the claimant experienced a significant increase in back pain. She was examined by a surgeon who diagnosed lumbar stenosis at L3-4 and L4-5 secondary to herniated discs, as well as spondylolisthesis at L4-5. The physician recommended surgical decompression for the stenosis and fusion for treatment of the spondylolisthesis. (Report of Dr. Masferrer, July 8, 1999). Because of the claimant's deteriorating condition, Dr. Morgan removed her from work from November 8, 1999, until November 28, 1999.
Relying principally on the claimant's opinion and the expert report of Dr. Gronseth, the ALJ found the claimant's worsened condition and need for surgery "is 50% due to the original [1991] injury and 50% due to her LPN work thereafter." Thus, relying on State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985), the ALJ ordered University Park to pay fifty percent of the claimant's temporary disability benefits and 50 percent of the medical benefits, including the cost of the recommended back surgery. The Preferred Professional respondents were ordered to pay the balance.
I.
On review, University Park contends the ALJ erred as a matter of law in ordering it to pay any medical benefits. This respondent first argues that State Compensation Insurance Fund v. Industrial Commission, supra, is limited to apportionment of temporary disability benefits, not medical benefits. In any event, University Park argues that because the claimant sustained an occupational disease, Royal Globe Insurance Co. v. Collins, supra, dictates that the insurer "on the risk at the time medical expenses are incurred is liable for payment of those expenses." 723 P.2d at 736. Consequently, University Park asserts that Preferred Professional, as insurer for Villa Pueblo, is liable. We are not persuaded.
In State Compensation Insurance Fund v. Industrial Commission, supra, the Court of Appeals permitted apportionment of temporary total disability benefits between two insurers where the Industrial Commission found the claimant's temporary disability was attributable to the concurrent worsening of two separate back injuries. In so doing, the court held that the full responsibility rule does not relieve an employer or its insurance carrier "from all liability for injuries sustained by an employee because the employee is subsequently injured in another accident, and because the employee is not permanently and totally disabled." The court went on to state that the Industrial Commission "did not abuse its discretion in apportioning liability for the additional benefits awarded claimant between both employers and their respective insurance carriers." 697 P.2d at 809. Even though this case involved only temporary disability benefits, we have subsequently extended the principle to include medical benefits because of the court's use of broad language, and the absence of any specific statutory provision governing the apportionment of medical benefits. See Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997); Watts vs. Eben Ezer Lutheran Care Center, W.C. No. 3-905-560 (February 14, 1994). University Park's argument notwithstanding, we decline to depart from our prior rulings which extend State Compensation Insurance Fund to encompass medical benefits.
We next consider University Park's contention that the apportionment principle enunciated in State Compensation Insurance Fund is inapplicable where, as here, an occupational disease is involved. Initially, we agree with University Park that the ALJ necessarily found the claimant sustained an accidental injury in 1991, and a distinct occupational disease while subsequently performing duties as an LPN for University Park and Villa Pueblo. Although the Preferred Professional respondents argue the claimant sustained only an accidental injury in 1991, this assertion is inconsistent with the ALJ's apportionment of liability between two separate entities, and the finding that both the "original injury" and the claimant's subsequent work as an LPN contributed to her worsened condition and need for treatment. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993) (an "accidental injury" is traceable to a particular time, place, and cause, while any "occupational disease" is acquired in the ordinary course of employment and is a natural incident of employment).
The statute currently codified at § 8-41-304(1), C.R.S. 2000, provides 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."
The purpose of this statute is to assign liability for an occupational disease where the claimant has been exposed to the hazards of the disease in successive employments. By placing liability for compensation benefits on the last employer (or insurer) where the claimant sustained a last injurious exposure to and substantial permanent aggravation of the disease, the claimant is relieved of the "onerous, if not impossible, task of proving which employer caused the disability." Robbins Flower Shop v. Cinea, 894 P.2d 63, 65 (Colo.App. 1995). However, in Royal Globe Insurance Co. v. Collins, supra, the Supreme Court held the statute does not govern liability for medical benefits. Instead, liability for medical benefits is placed on the "carrier on the risk at the time medical expenses are incurred." 723 P.2d at 736. Consequently, in cases where the claimant has sustained an occupational disease and was exposed to the hazards of the disease in more than one employment, we have held that liability for medical benefits is determined under the ordinary rules of causation applicable to claims involving accidental injuries. Hence, the insurer "on the risk" when medical expenses are incurred is the insurer which insured the employer whose conditions of employment caused the need for treatment. See 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); Martinez v. Storage Technology Corp., W.C. No. 4-175-875 (August 31, 1995).
Applying these principles here, we perceive no legal impediment to the apportionment of medical benefits ordered by the ALJ. First, the ALJ's order does not implicate § 8-41-304(1) and Royal Globe Insurance Co. v. Collins, supra. The apportionment ordered by the ALJ does not involve an attempt to ascertain the relative contributions of successive employers to the claimant's occupational disease. Rather, the order apportions liability for temporary disability and medical benefits between the occupational disease and a separately compensable accidental injury. Cf. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991) (although former § 8-51-112 (1) imposed "full responsibility" upon the employer for that portion of the claimant's permanent total disability caused by silicosis, former § 8-51-106(1)(a) was harmonized to permit the employer to assign liability to the Subsequent Injury Fund for that portion of the claimant's permanent total disability caused by prior industrial injuries not involving an occasional disease). Further, it is not inherently more difficult to ascertain the degree to which an accidental injury and an occupational disease have contributed to a need for medical treatment than it is to ascertain the extent to which two industrial injuries have contributed to a need.
Moreover, the ALJ's order is not inconsistent with Royal Globe Insurance Co. v. Collins, supra. Royal Globe contemplates that medical treatment will be paid for by the employer who has caused the need for treatment. Here, the ALJ has found that University Park has caused 50 percent of the need for treatment. Thus, under the ordinary rules of causation and apportionment set forth in State Compensation Insurance Fund v. Industrial Commission, supra, University Park is liable for its share of the medical benefits.
II.
University Park next contends the ALJ erred in ordering it to pay fifty percent of the claimant's temporary disability benefits. This argument is a reiteration of the argument that, under § 8-41-304(1) and Royal Globe, University Park cannot be liable because the claimant sustained an occasional disease. However, as held above, § 8-41-304(1) is not implicated here because the ALJ's order does not involve an attempt to determine the relative contributions of several employments to a single occupational disease. Rather, the issue is one of apportionment between the effects of an accidental injury and the effects of a separate occupational disease. For reasons already stated, we conclude this situation is governed by State Compensation Insurance Fund v. Industrial Commission, supra, not Royal Globe Insurance Co. v. Collins.
III.
Finally, University Park contends that even if apportionment is legally permissible, the record lacks substantial evidence to support the ALJ's finding that the 1991 injury is responsible for fifty percent of the claimant's temporary disability and need for treatment. In support of this proposition, University Park relies on evidence that in 1999 the claimant was diagnosed with conditions which did not exist at the time of MMI for the 1991 injury, and evidence the claimant was released to return to work without restrictions in 1998. We reject this argument.
State Compensation Insurance Fund v. Industrial Commission allows apportionment where the totality of the evidence permits an inference that the worsening of a claimant's condition is "causally related to both of the previous injuries." 697 P.2d at 807. The issue of causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, ___ P.3d __ (Colo.App. No. 99CA1136, May 11, 2000). Consequently, we must uphold the ALJ's determination of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Although expert medical proof of causation is not required, where such evidence is presented it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, Dr. Gronseth and Dr. Morgan both opined that the deterioration of the claimant's back condition is 50 percent attributable to the 1991 injury and 50 percent attributable to her normal work activities as an LPN. (Report of Dr. Morgan, December 2, 1999; report of Dr. Gronseth, February 14, 2000). These expert opinions were corroborated by the claimant's own testimony concerning deterioration of her condition. (Tr. p. 18). Under these circumstances, the record contains substantial evidence to support the ALJ's order, and the mere existence of conflicting evidence and inferences affords no basis for appellate relief. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated April 14, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. 2000. 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 December 27, 2000 to the following parties:
Debra C. Perrino, 320 Palm St., Pueblo, CO 81003
Barbara Strombeck, NHA, University Park Care Center, 945 Desert Flower Blvd., Pueblo, CO 81001
CHIMR d/b/a Villa Pueblo Towers, 1111 Bonforte Blvd., Pueblo, CO 81001
Sharon Thompson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Alternative Management Services, Inc./Preferred Professional Insurance Company, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
William A. Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For Respondent University Park Care Center)
Susan K. Reeves, Esq., and Richard W. Pruett, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents CHIMR d/b/a Villa Pueblo Towers and Alternative Management Services, Inc./Preferred Professional Insurance Company)
BY: A. Pendroy