Opinion
W.C. Nos. 4-499-370 4-499-372.
January 23, 2004.
FINAL ORDER
Fremont Indemnity Company (Fremont) and its insured, Rocky Mountain Orthodontics (Rocky Mountain) seek review of an order of Administrative Law Judge Klein (ALJ) which held Fremont responsible for an occupational disease to the claimant's left upper extremity. Fremont contends the ALJ erroneously failed to find the claimant suffered an intervening event while Twin City Fire Insurance Company (Twin City) was the insurer on the risk. We disagree and, therefore, affirm.
On August 31, 2000 the claimant, who is right hand dominant, suffered a traumatic injury to her right hand. Fremont admitted liability. When conservative treatment failed, the claimant underwent surgery on November 17, 2000, which consisted of a right wrist arthroscopy with TFC debridement. The claimant immediately returned to work and was medically restricted from using her right hand.
On January 15, 2001, the claimant complained of left wrist problems. The claimant alleged left wrist pain and numbness caused by overuse of the left hand to compensate for the medical restrictions which prohibited her use of the right hand. Twin City admitted liability for an injury to the left upper extremity.
The claimant was placed at maximum medical improvement (MMI) for the left wrist injury on May 29, 2001 and released to return to modified employment. Thereafter, the claimant continued to treat for problems with the right wrist including two additional surgeries. Rocky Mountain was unable to accommodate the claimant's bilateral medical restrictions and therefore, Twin City began paying temporary disability benefits.
A Division-sponsored independent medical examination (DIME) physician opined that the claimant's left wrist injury is a cumulative trauma disorder secondary to increased use to compensate for the right wrist problems. The DIME physician also opined the claimant's left wrist injury would not have occurred had the claimant not suffered the right upper extremity injury or returned to work performing repetitive job activities with her left hand.
Crediting the claimant's testimony and the opinions of the DIME physician, the ALJ determined the claimant's left upper extremity injury is the proximate and natural consequence of the right wrist injury. Therefore, the ALJ granted Twin City prospective relief from its admission of liability and ordered Fremont to pay additional workers' compensation benefits due on account of the injury to the left upper extremity.
On appeal, Fremont contends evidence the claimant's left wrist injury was caused by repetitive work activities compels the conclusion the left upper extremity injury is the result of an intervening event while Twin City was the insurer. In support, the respondents cite our conclusions in Williams v. Richtman Printing, W.C. No. 4-358-101 et. al. (April 25, 2002 and December 4, 2002). We reject this argument.
In Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970), the court held that if an underlying industrial injury is "determined to have arisen out of and in the course of claimant's employment obviously results flowing proximately and naturally therefrom come under the aegis of the statute." In Standard Metals, the claimant fractured two bones of the lower right leg in an industrial accident. Subsequently, he slipped and fell on an icy sidewalk and refractured the bones. The court held the refractures were compensable consequences of the industrial injury because medical evidence supported the ALJ's finding that the refractures probably would not have occurred if the bones and leg had not remained in a weakened condition from the original injury.
However, if the claimant sustains a compensable industrial injury and is reinjured as a result of an efficient intervening cause, the reinjury is not compensable "merely because the later accident might or would not have happened if the employee had retained all his former powers." Post Printing Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934). In Post Printing the claimant sustained an industrial right knee injury which was compensated. Later, the claimant fell on a snowy sidewalk and broke the right ankle. The court rejected the theory that the fall on the sidewalk was a continuation or aggravation of the knee injury, finding that the "second accident was brought about as any similar accident might be in the case of a person possessed of a like degree of physical power, mental alertness, and caution, wholly regardless of whether there was any previous injury."
Generally, the question of whether an injury is the result of an efficient intervening cause is a question of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002); see also, University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
In Williams v. Richtman Printing, supra, the claimant sustained an injury to the left upper extremity. After surgical treatment he was released to return to modified employment. A few months later the claimant was placed at MMI and permanent impairment was determined. A couple of months after that the claimant began complaining of symptoms in his right upper extremity. Evidence demonstrated the claimant suffered an injury to the right upper extremity injury from overusing the right upper extremity to compensate for reduced function in the left upper extremity. In that case we concluded, as a matter of law, that the effects of the left upper extremity injury had come to rest and there was not a sufficient physical or medical connection between the left upper extremity injury and the right upper extremity injury.
However, this case is more akin to the facts in Marin v. Compass Logistics Inc., W.C. No. 4-520-473 (November 7, 2002) than the facts in Williams. In Marin the claimant returned to work after surgery for a work-related injury to his right upper extremity. The claimant subsequently injured his left upper extremity while pushing a heavy wheeled cage. The claimant testified that the injury occurred when he pushed the cage with his left arm because he was experiencing pain in his right upper extremity which caused him to place too much stress on the left shoulder. We concluded the record supported an ALJ's finding that the right shoulder injury was the factual, and hence legal cause of the left shoulder injury.
Consequently, we held that Marin was factually distinguishable from Williams, because the record showed an immediate physical connection between the second upper extremity injury to the original upper extremity injury. Specifically, ongoing pain from the original injury caused pain, which in turn caused the claimant to over exert the other extremity.
Here, the record contains evidence the claimant returned to work immediately after surgery on her right upper extremity. As a result of the surgery the claimant was precluded from using her right hand for any purpose. Consequently, it was a direct result of temporary medical restrictions imposed to treat the injury to the right upper extremity that the claimant performed all repetitive job duties with her left hand.
Moreover, as found by the ALJ, the record contains evidence that the claimant's left upper extremity continued to worsen after she was placed on temporary disability benefits and no longer performing the repetitive activities required of her employment. Indeed, the right hand injury had not come to rest at the time of the left hand injury and the claimant required additional surgery on the right hand after the left hand injury occurred. Under these circumstances, the ALJ reasonably inferred that the left hand injury was proximately caused by ongoing symptomatology in the right upper extremity and not the repetitive job duties. Further, this finding supports the conclusion Fremont is responsible for the left upper extremity injury.
IT IS THEREFORE ORDERED that the ALJ's order dated May 6, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. SocolofskyNOTICE
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. 2003. 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 order were mailed to the parties at the addresses shown below on January 23, 2004 by A. Hurtado.
Mary Anne Chavez, 3617 Shoshone, Denver, CO 80211
Rocky Mountain Orthodontics, 650 W. Colfax Ave., Denver, CO 80204
Fremont Indemnity Company, c/o Sundee Hahn, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
Twin City Fire Insurance Company, c/o Karen Gioia, Hartford Insurance Company, 450 Gears Rd., #400, P. O. Box 4626, Houston, TX 77210-4626
Elsa Martinez Tenreiro, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
James Buck, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents Rocky Mountain Orthodontics and Fremont Indemnity Company)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents Rocky Mountain Orthodontics and Twin City Fire Insurance Company)