Opinion
W.C. No. 4-465-044
July 25, 2002
FINAL ORDER
Ace Fire Underwriters Insurance Company (Ace) and its insured, R R Custom Woodworking, Inc. (collectively the Ace respondents) seek review of an order of Administrative Law Judge Jones (ALJ) which held them responsible for medical benefits as a result of the claimant's occupational disease. We affirm.
The claimant was employed by the employer for 18 years. In 1995, the claimant began experiencing bilateral upper extremity problems which were diagnosed as a bilateral overuse syndrome. Pinnacol Assurance admitted liability for medical benefits. In January 1996, the claimant was placed at maximum medical improvement (MMI) without permanent impairment or work restrictions.
In January 1997, the claimant was diagnosed as having a repetitive motion disorder. Dr. van den Hoven conducted EMG studies which revealed mild left and borderline right carpal tunnel syndrome. Pinnacol provided medical benefits. In December 1997, Dr. van den Hoven placed the claimant at MMI with no permanent impairment and no work restrictions.
From July 1, 1997, to June 30, 2000, the employer was insured for workers' compensation by Ace. Effective July 1, 2001, Wausau Insurance Company (Wausau) became the insurer.
In April 2000, the claimant sought additional treatment for complaints of severe bilateral wrist pain, and difficulty gripping tools. Dr. van den Hoven conducted repeat EMG studies which revealed "mildly worse" carpal tunnel syndrome when compared to the May 1997 EMG studies. Dr. Deitz imposed medical restrictions, and Dr. van den Hoven referred the claimant to Dr. Bussey, who recommended a left carpel tunnel release. The claimant desired surgery, but surgery was deferred after the respondent-insurers denied liability.
The ALJ determined the claimant suffered a compensable occupational disease which affected his upper extremities. Although the claimant's condition worsened in April 2001, the ALJ found the need for additional medical treatment including the left carpal tunnel release was caused by the claimant's employment activities between May 1997 and April 2000. Consequently, the ALJ concluded Ace is responsible for additional medical benefits, including the surgery recommended by Dr. Bussey.
On appeal, the Ace respondents contend the ALJ's findings are insufficient to permit appellate review because the ALJ failed to determine exactly when the "slight worsening" of the claimant's condition occurred. The Ace respondents also contend the ALJ's findings are internally inconsistent, not supported by the record, and do not support the order. To the contrary, the Ace respondents contend the ALJ's findings compel the conclusion that the need for additional medical treatment was caused by a natural progression of the 1995 or January 1997 injuries. Alternatively, the Ace respondents contend the claimant's condition was substantially and permanently aggravated after April 2001, when Wausau became the insurer. Therefore, they argue the ALJ erroneously held them responsible for the disputed medical benefits. We perceive no basis on which to disturb the ALJ's order.
Section 8-41-304(1), C.R.S. 2001 provides that "where compensation is payable for an occupational disease," the employer in whose employment the claimant was "last injuriously exposed" to the hazards of the disease and "suffered a substantial permanent aggravation thereof" is solely liable for the disease. However, it is well established that § 8-41-304(1) does not govern the determination of liability for medical benefits in a claim based upon an occupational disease. This is because, in the context of § 8-41-304(1), the term "compensation" does not include "medical benefits." Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). Rather, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. Collins, supra.
The insurer "on the risk" when medical expenses are "incurred" is the carrier which insured the employer whose conditions of employment caused, aggravated, or accelerated the occupational disease, and triggered the need for medical treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). The cause of the need for treatment is a question of fact to be determined by the ALJ. Consequently, we must uphold the ALJ's finding if supported by substantial evidence in the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); § 8-43-301(8), C.R.S. 2001. Under this standard, we must defer to the ALJ's resolution of conflicts in the evidence, her assessment of the sufficiency and probative weight of the evidence and plausible inferences drawn from the record. University Park Care Center v. Industrial Claim Appeals Office, supra.
The order on review only awarded medical benefits. Consequently, we need not consider the Ace respondents' various arguments in support of their contention that the ALJ erroneously found the claimant was not last injuriously exposed after July 1, 2001, when Wausau became the employer's workers' compensation insurer.
Next, we have no difficulty ascertaining the basis of the ALJ's order. Consequently, we reject the Ace respondents' contention that the ALJ's order is insufficient to permit appellate review. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
The ALJ found the claimant suffered a measurable, although "slight worsening" of his condition between 1997 and May 2000, and that in April 2000, the claimant could no longer tolerate the pain without drastic treatment intervention. Because Ace was the insurer on the risk during that period, the ALJ found the Ace respondents were liable for additional medical treatment.
The claimant testified that after he developed the upper extremity symptoms, he continued to perform repetitive upper extremity work in the mill shop, then as a sander, and later in setting up molders. (Tr. p. 26-27). He testified that his wrist and elbow problems increased while setting up molders. (Tr. p. 28). Further, the claimant added that his condition progressively worsened until April 2000, when he decided he needed surgical relief from the pain symptoms. (Tr. pp. 31, 52).
As argued by the Ace respondents, the claimant admitted he knew surgery was a treatment option in 1997. However, he stated he declined surgery at that time because he thought he could "tough it out." (Tr. p. 38).
In addition, the record contains evidence the claimant was not subject to work restrictions prior to April 2000. However, in April 2000, Dr. Deitz imposed work restrictions for use of the upper extremities. Accordingly, the ALJ reasonably inferred the need for surgery arose, and was caused by the claimant's employment while Ace was the insurer on the risk.
Moreover, Dr. Bussey's recommendation for surgery predated the effective date of Wausau's coverage. Thus, regardless of whether the claimant's condition was permanently aggravated after April 2001, the ALJ's findings support the conclusion that the claimant's employment prior to July 1, 2001 caused the need for surgery. Consequently, the ALJ did not err in holding the Ace respondents liable for the left carpal tunnel release recommended by Dr. Bussey.
The Ace respondents' remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated January 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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 July 25, 2002 to the following parties:
David Warner, 2537 15th Ave. Court, Greeley, CO 80631
Personnel/HR, R R Custom Woodworking, Inc., P. O. Box 1232, Greeley, CO 80632-1232
ACE Fire Underwriters Insurance Company, Standard Place 3, 4582 Ulster St., FL 7, Denver, CO 80237
ACE Fire Underwriters Insurance Company, _ Wes Johnson, ACE/ESIS, P. O. Box 911, Portland, OR 97207
George Fairbanks, Wausau Insurance Company, 9547 S. University Blvd., #313, Highlands Ranch, CO 80126
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents R R
Custom Woodworking, Inc. and Pinnacol Assurance)
Regina M. Walsh Adams, Esq., 1011 37th Ave. Court, #201, Greeley, CO 80634 (For Claimant)
Richard A. Bovarnick, Esq. and Tiffany L. Scully, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents R R Custom Woodworking, Inc. and ACE Fire Underwriters Insurance Company)
Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents R R
Custom Woodworking, Inc. and Wausau Insurance Company)
Connie K. Hulst, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Hurtado