Opinion
W.C. No. 4-240-121
September 24, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied his claim for medical benefits. The claimant argues that the ALJ erred in denying benefits because the occupational disease is not currently "disabling," and because "medical monitoring" does not constitute active treatment. We reverse the ALJ's denial of benefits.
The ALJ's findings of fact are undisputed. As a result of exposure to beryllium dust while employed by respondent J.A. Jones Construction Company, the claimant developed "chronic beryllium disease." As the ALJ noted, this diagnosis is supported by the testimony of both medical experts who testified in the case. Moreover, the claimant "requires periodic evaluation and testing to monitor his condition to see if it deteriorates or worsens to the point where he would require medical care and treatment for the condition." Specifically, the claimant's medical expert testified that medical monitoring is necessary to determine when and if the claimant's symptoms worsen to the point that the benefits of medication would outweigh the potential side-effects. (Tr. January 6, 1997, p. 27).
Despite these findings, the ALJ concluded that the respondents are not liable for the expense of periodic medical evaluations and testing recommended by the claimant's physician. Citing our decision in Griffith v. Rockwell International, W.C. No. 4-157-178 (July 27, 1994), the ALJ held that an occupational disease is not "compensable" unless it is "disabling" and necessitates active medical treatment. Because the ALJ found that the beryllium disease is not currently disabling the claimant, and because the ALJ concluded that medical monitoring does not rise to the level of treatment, he denied and dismissed the claim.
On review, the claimant contends the ALJ erred in denying his claim for "medical monitoring" of his disease. The claimant argues that this case is distinguishable from Griffith v. Rockwell International, supra, because the claimant in Griffith did not actually have an occupational disease at the time he sought benefits. Further, the claimant asserts that the development of "vocational disability" is not a prerequisite to compensation of medical expenses stemming from an occupational disease. Finally, the claimant asserts that medical monitoring is a compensable medical benefit under the statute. We agree with these arguments.
In Griffith v. Rockwell International, supra, the claimant was diagnosed with "sensitization to beryllium," and the treating physician recommended monitoring of the claimant's condition to determine "whether the patient develops the disease." Citing City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976), we held that because the claimant had not been diagnosed with beryllium disease, and had not established any disability stemming from his condition, he failed to prove a compensable claim. Under those circumstances, we declined to discuss the issue of whether the ALJ erred in failing to award medical benefits in the form of medical monitoring.
Here, unlike the situation in Griffith, the ALJ found as a matter of fact that the claimant developed chronic beryllium disease as a result of his workplace exposure to beryllium dust. (Conclusions of Law, p. 3). Moreover, this case is unlike the situation in City of Littleton v. Schum, where the claimant was exposed to hepatitis and sought compensation for preventive inoculations prior to developing the disease. Rather, the question here is whether a claimant, who has admittedly developed an occupational disease as defined by § 8-40-201(14), C.R.S. 1998, is to be denied medical benefits because the disease had not yet become "disabling."
Section 8-42-101(1)(a), C.R.S. 1998, provides that an employer must provide medical treatment "as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury." (Emphasis added). If an injury is compensable, the "employer's duty to provide medical and kindred relief at his own expense is absolute." Greager v. Industrial Commission , 701 P.2d 168 (Colo.App. 1985).
In 1975, the "Colorado Occupational Disease Disability Act" was repealed and the statute currently found at § 8-40-201(2), C.R.S. 1998, was enacted. That statute provides as follows:
"Accident", "injury", or "injuries" includes disability or death resulting from accident or occupational disease as defined in subsection (14) of this section.
Similarly, the statute currently found at § 8-41-301(1)(c), C.R.S. 1998, was amended so as to delete any reference to "accident" and establish liability for injury or death caused by an "injury or occupational disease." 1975 Colo. Sess. Laws, ch. 71 at 305. The effect of the 1975 amendments was to broaden the scope of compensable "injuries" so that liability for accidental injuries and occupational diseases became coextensive. See CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982).
In cases where the claimant sustains an "accidental injury" rather than an "occupational disease," it is generally accepted that the claimant is entitled to medical benefits even if the injury does not result in any disability. This understanding stems from various provisions of the Act. For instance, § 8-43-103(2), C.R.S. 1998, provides that the two-year statute of limitations for filing a claim is tolled if the employer pays "compensation" to the claimant. However, the statute also provides that the "furnishing of medical, surgical or hospital treatment" does not constitute "payment of compensation" for purposes of the tolling provision. Martin v. Industrial Commission, 43 Colo. App. 521, 608 P.2d 366 (1979). Similarly, §§ 8-43-101(1) and (2), C.R.S. 1998, place different reporting requirements on the employer depending on whether the claim involves lost time from work, permanent disability, and fatality, or is a so-called "medical only" claim. City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo. App 1998).
Moreover, the Act's provision of disability benefits and medical benefits recognizes that an industrial injury causes distinct types of financial losses. This point was made in Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), where the court stated the following:
The Act is designed to compensate an injured worker for two distinct losses resulting from an industrial injury or occupational disease: the loss of earning capacity based on the concept of disability, and medical and other costs associated with the injury or disease.
Because liability for accidental injuries and occupational diseases is coextensive by design, it would be anomalous to permit an award of medical benefits in cases where the claimant sustains an accidental injury and no disability ensues, but prohibit an award of medical benefits in cases where the claimant sustains an occupational disease and no disability has yet occurred. Moreover, such a result would defeat the statutory objective of compensating the distinct losses resulting from impaired earning capacity and the expense of medical treatment. For these reasons, we conclude that reasonable and necessary medical treatment resulting from an occupational disease is compensable even if the claimant has not sustained any disability as a result of the disease.
In reaching this result, we recognize the well-established rule that, in cases of occupational disease, the rights and liabilities of the parities are governed by the law in effect at the date of the "onset of disability." Eg. Ortiz v. Charles J. Murphy and Co., ___ P.2d ___ (Colo.App. No. 98CA0086, July 23, 1998); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Although these cases sometimes state that a "compensable" occupational disease does not occur until the claimant experiences the onset of disability, we are aware of no case which directly holds that an onset of disability is a prerequisite to an award of medical benefits for an occupational disease under § 8-42-101(1)(a). To the contrary, the cases applying the onset of disability rule typically involve a choice of laws question, as where the claimant's benefits would differ depending on the date of the injury. Eg. SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994) (applies onset of disability rule in determining whether claim governed by SB-218); Henderson v. RSI, Inc., supra (applies onset of disability rule to determine the claimant's average weekly wage).
Thus, the onset of disability rule is designed to assist ALJs in resolving the difficult question of when the claimant actually sustains an occupational disease where resolution of that question affects the level of benefits. Here, there is no dispute that the claimant has already sustained an occupational disease, and that he would be entitled to medical benefits regardless of the specific date of injury. Thus, the rationale for the onset of disability rule has no application to the issue before us, and is not determinative of the claimant's right to medical benefits. Cf., Martinez v. Industrial Commission, 40 Colo. App. 485, 580 P.2d 36 (1978) (declining to apply onset of disability rule where strict application would render non-compensable an otherwise compensable disease, and employer continued to subject claimant to hazards after learning of the disease).
Finally, we agree with the claimant that the ALJ erred in concluding that reasonably necessary medical monitoring does not constitute a medical benefit under § 8-42-101(1)(a). The case law does not make an arbitrary distinction between "active treatment" and "diagnostic procedures." See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949) (exploratory surgery held compensable where necessary to ascertain the extent of the claimant's injury). Further, treatment has been held compensable, irrespective of its nature, if designed to prevent deterioration in the claimant's condition. Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). For these reasons, we have held that "medial monitoring" is compensable under Grover v. Industrial Commission, supra, if it is reasonably necessary to guard against possible deterioration of the claimant's condition. Atwood v. Western Slope Industries, W.C. No. 3-069-135 (November 28, 1994).
Here, as the ALJ found, the evidence establishes that medical monitoring is reasonably necessary to determine the point in time at which the claimant should receive drug therapy to alleviate the effects of the occupational disease. Such periodic evaluations constitute compensable medical treatment since they are designed to relieve the effects of the industrial injury.
Our order in Griffith, and the opinion in City of Littleton v. Schum, supra, are not authority to the contrary. Both cases involve preventive or diagnostic procedures prior to the time the claimant actually sustained an occupational disease.
IT IS THEREFORE ORDERED that the ALJ's order dated June 30, 1997, is reversed, and the respondents shall provide reasonable and necessary medical monitoring of the claimant's occupational disease.
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. 1998.
Copies of this decision were mailed September 24, 1998, to the following parties:
Joseph Bonazzo, 1010 Cedar St., Broomfield, CO 80020
J.A. Jones Construction Co., P.O. Box 4004, Golden, CO 80401-0004
Nancy A. Kass, Travelers Co., P.O. Box 173762, Denver, CO 80217-3762
Michael A. Patrick, Esq., 630 Cleveland Ave., Louisville, CO 80027-2712 (For the Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3 Ste. 600, Denver, CO 80202 (For the Respondents)
BY: _______________________