Opinion
W.C. Nos. 4-358-101 4-401-959
April 25, 2002
FINAL ORDER
Respondents Richtman Printing (Richtman) and Hartford Fire Insurance Company (Hartford) seek review of orders of Administrative Law Judge Friend (ALJ Friend) and ALJ Stuber requiring Hartford to reimburse respondent Fireman's Fund Insurance Company (Fireman's Fund) for benefits paid to the claimant. Hartford argues ALJ Friend erroneously permitted Fireman's Fund to withdraw two admissions of liability. Hartford also argues the evidence does not support ALJ Friend's determination the claimant's right upper extremity symptoms were a natural and proximate result of the claimant's 1997 industrial injury. We reverse both orders.
The claimant sustained an injury to his left wrist on October 15, 1997, while employed by Richtman. At that time, Richtman was insured by Hartford. The claim for this injury was assigned W.C. No. 4-358-101, and Hartford admitted liability.
The claimant underwent surgery to reduce a fracture of the left wrist, as well as carpal tunnel surgery on the left upper extremity. In April 1998 the treating physician, Dr. Yamamoto, released the claimant to modified employment, and the claimant returned to modified duty with Richtman. On July 13, 1998, Dr. Yamamoto placed the claimant at maximum medical improvement, and on August 7, 1998, Hartford filed a final admission of liability based on Dr. Yamamoto's left upper extremity impairment rating. The claimant objected to this final admission.
The claimant returned to Dr. Yamamoto on October 13, 1998, with a mild increase in symptoms of his left upper extremity, and a "marked increase" in symptoms of the right upper extremity. Dr. Yamamoto diagnosed "right upper extremity CTD with evidence of median and ulnar nerve compression, and right lateral epicondylitis." Dr. Yamamoto also reported these symptoms were "secondary to overuse of the right upper extremity, as compensation for lack of function of the left upper extremity." In his deposition, Dr. Yamamoto reiterated the opinion the claimant sustained injury to his right upper extremity because, in an attempt to do as much work as he could, the claimant " was restricted so severely with the left-hand" that he was using "the right hand probably twice as much or more than he did prior to the injury to the left." (Yamamoto Depo. p. 5).
In November 1998, the claimant filed a claim for benefits for injury to the right upper extremity, and the claim was assigned W.C. No. 4-401-959. By October 1998, Richtman was insured by Fireman's Fund. Fireman's Fund filed general admissions of liability on January 26, 1999, and April 26, 1999. The first general admission, which was for medical benefits only, reserved the "right to recover benefit payments under previous comp. carrier." The second general admission was for medical benefits and temporary total disability benefits commencing February 8, 1999, and contained no reservation.
In July 2000, the matter proceeded to hearing before ALJ Friend on Fireman's Fund's request for reimbursement from Hartford for benefits paid to the claimant under the 1999 admissions of liability. Based on Dr. Yamamoto's opinions, Fireman's Fund theorized the claimant's right upper extremity injuries were a compensable consequence of the 1997 injury to the claimant's left wrist. Thus, Fireman's Fund took the position Hartford is liable for the right upper extremity problems and should reimburse Fireman's Fund for benefits paid in W.C. No. 4-401-959.
In an order dated August 2, 2000, ALJ Friend concluded Hartford is liable for "any benefits due to the claimant as a result of his right upper extremity condition," and dismissed the claim against Fireman's Fund in W.C. No. 4-401-959. In support, ALJ Friend credited the opinion of Dr. Yamamoto, and the claimant's testimony, that the right upper extremity problems developed because the claimant overused the right upper extremity to compensate for restrictions imposed because of the injury to the left upper extremity. (Findings of Fact 2 and 5). Under these circumstances, the ALJ concluded the "preponderance of the evidence establishes that the October 1997 compensable injury directly and proximately caused the Claimant's right upper extremity condition for which benefits are sought." ALJ Friend further determined that Fireman's Fund was not "estopped" from denying liability for the right upper extremity condition, despite its admissions of liability.
Subsequently, the matter proceeded to hearing before ALJ Stuber concerning the issue of "reimbursement." ALJ Stuber concluded Fireman's Fund's admissions did not preclude an order requiring Hartford to reimburse Fireman's Fund for benefits paid under the admissions. Thus, ALJ Stuber ordered Hartford to reimburse Fireman's Fund $34,732.17 for medical and temporary disability benefits paid to the claimant.
On review, Hartford argues ALJ Friend erroneously permitted Fireman's Fund to withdraw its admissions of liability without proof of fraud, mistake or excusable neglect. Alternatively, Hartford argues the evidence does not support ALJ Friend's finding that the claimant's right upper extremity problems are a "natural and proximate" result of the 1997 injury. According to Hartford, the evidence establishes the claimant sustained a separate compensable injury in October 1998. Because we substantially agree with Hartford's second argument, we do not consider the first.
Once the claimant proves a compensable injury, respondents are liable for results flowing proximately and naturally therefrom. Thus, if the industrial injury leaves the body in a weakened condition, and that weakened condition is the cause of further injury, the further injury is compensable. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, if a subsequent injury is the result of an independent intervening cause, the subsequent injury is not a compensable consequence of the first injury. See Owens v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0803, March 14, 2002). Although causation is generally a question of fact for the ALJ, it becomes an issue of law if the undisputed facts permit only one conclusion. Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
The question presented here is whether the claimant's "overuse" of the right upper extremity is a natural and proximate result of the 1997 injury to the left wrist, or is the result of an intervening injury or disease which the claimant incurred after he returned to work in April 1998. In Trujillo v. Public Service Co., W.C. No. 4-297-289 (May 13, 1998), the claimant sustained a knee injury 1996. As a result, the claimant was transferred to "office work" where he developed bilateral carpal tunnel syndrome (CTS). Relying on Standard Metals Corp. v. Ball, supra, we held the evidence supported the ALJ's finding that the CTS was a natural and proximate result of the claimant's knee injury. However, in Public Service Co. v. Industrial Claim Appeals Office, (Colo.App. No. 98CA2120, July 22, 1999) (not selected for publication), the court set aside our order because it concluded the knee injury was not the "legal cause" of the CTS. Specifically, the court determined there was "no physical or medical connection between the knee injury and the CTS," nor was the CTS incurred while going "to or from medical treatment for the knee injury." Thus, the court concluded the "CTS condition must be viewed as a separate injury contributing to claimant's permanent total disability, and not a compensable consequence of the original knee injury."
At least two published cases support the conclusion that "overuse" injuries which result from the claimant's attempt to compensate for restrictions attributable to a prior industrial injury are to be treated as intervening injuries. In Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994), the claimant sustained an injury while performing on the job training (OJT) as part of a vocational rehabilitation plan for a prior industrial injury. At the time of the injury, the claimant's salary was divided between the claimant's employer at the time of the first injury and the OJT employer. The court determined, for purposes of Subsequent Injury Fund (SIF) liability, that there were two compensable injuries and the SIF was obligated to pay that portion of the claimant's permanent total disability benefits not attributable to the second injury. The court noted that, although the claimant failed to file any claim against the OJT employer, it was "at least arguable that a claim for benefits could lie against that employer under the facts appearing here." Id. at 421.
In Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d 591 (Colo.App. 1998), the court held that a "second injury" which results from a "weakened condition" caused by a prior industrial injury is compensable because the original injury is the legal cause of the second injury. However, quasi-course injuries sustained while traveling to and from authorized medical treatment are not compensable because they are "caused" by the prior industrial injury. Rather, quasi- course injuries are compensable because the employer's obligation to provide treatment for an industrial injury makes travel for medical treatment "part of the employment." In Employers Fire, which involved reimbursement of a PIP carrier by a workers' compensation carrier, the court held the quasi-course employment injury "would have provided the basis for a second claim," and "was not part of [the claimant's] first claim."
Here, the claimant's right upper extremity injuries were not the product of a "weakened condition" caused by the 1997 injury to the left wrist. To the contrary, the claimant's right upper extremity injuries occurred in a completely different part of the body than the 1997 injury. Further, it is apparent that, but for the claimant's return to work for Richtman, he would not have "overused" his right upper extremity and developed the disease or injury diagnosed in October 1998. Thus, as a matter of law, the ALJ's findings compel the conclusion that the claimant's right upper extremity condition is the result of an intervening injury, not a "natural and proximate result" of the 1997 injury.
We are aware that Dr. Yamamoto and the claimant attributed the development of the right upper extremity condition to the 1997 injury. However, this testimony concerns medical causation, not legal causation. As stated in Post Printing Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934), the law does not contemplate that a compensable industrial injury is the cause of a subsequent injury "merely because the latter accident might or would not have happened if the employee had retained all his former physical powers." After being compensated for the original injury, the claimant "is subject to the ordinary risks applicable to any other man of equivalent vigor and strength," and "each new accident must be judged by the same standards for all." 30 P.2d at 328.
It follows that ALJ Friend's order is erroneous as a matter of law because it determined that "the October 1997 compensable injury directly and proximately caused" the claimant's right upper extremity injuries for which benefits are sought in W.C. No. 4-401-959. Thus, ALJ Friend's order must be reversed insofar as it held Hartford liable for benefits attributable to the claimant's right upper extremity condition and dismissed the claim for benefits in W.C. No. 4-401-959. ALJ Stuber's order must also be reversed to the extent it ordered Hartford to reimburse Fireman's Fund. In light of these determinations, we need not consider Hartford's argument concerning whether or not the "injury" to the claimant's right upper extremity is properly classified as an accidental injury or an occupational disease. Neither do we consider whether or not ALJ Friend erroneously permitted Fireman's Fund to withdraw its admissions of liability.
IT IS THEREFORE ORDERED that the order of Administrative Law Judge Friend dated August 2, 2000, and the order of ALJ Stuber dated May 14, 2001, are reversed. The matter is remanded for further proceedings concerning the compensability of W.C. No. 4-401-959, and such other proceedings as may be necessary to resolve these claims.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 25, 2002 to the following parties:
Robert E. Williams, Jr., 1688 S. Patton Ct., Denver, CO 80219
Richtman Printing, 7025 S. Revere Pkwy., Englewood, CO 80112-6736
Hartford Fire Insurance Company, 7670 S. Chester St., Englewood, CO 80112
Fran Wood, W.C. Adj., The Hartford, P. O. Box 4626, Houston, TX 77210-4626
Fireman's Fund Insurance Company, 7887 E. Belleview Ave., Englewood, CO 80111-6015
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents Richtman Printing and Hartford Fire Insurance Company)
James R. Florey, Jr., Esq., Triad West, #417, 5670 Greenwood Plaza Blvd., Englewood, CO 80111 (For Respondents Richtman Printing and Fireman's Fund Insurance Company)
By: A. Hurtado