Opinion
W.C. No. 4-746-176.
April 6, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ Jones) dated December 16, 2008, that found the claimant suffered a compensable injury and also seek review of an order of ALJ Henk dated October 21, 2009 that found Dr. Shogan and his referrals to be authorized and ordered payment of specific medical expenses such as the surgery performed on January 3, 2008. We affirm both orders.
This matter was first heard before ALJ Jones on the issue of compensability. The claimant was employed as a registered nurse. The claimant testified that on December 28, 2007 while restocking cribs in the supply room she bent over to pick up a bag of diapers and felt pain in her low back. ALJ Jones found the claimant's testimony credible. The claimant had undergone back surgery by Dr. Shogan a year earlier on December 12, 2006. The claimant was diagnosed as have a recurrent herniated disc at L5-S1. The claimant underwent a second surgery by Dr. Shogan on her low back. ALJ Jones determined that the claimant had aggravated her preexisting low back condition and concluded that the claimant suffered a compensable work injury to her back on December 28, 2007.
The matter was later heard before ALJ Henk on a variety of issues including liability for temporary total disability benefits and authorized medical benefits. ALJ Henk found that the claimant's surgery performed by Dr. Shogan on the claimant's low back was performed on an emergency basis and was related to her compensable December 28, 2007 industrial injury. ALJ Henk further found that the respondents had failed to designate a medical provider in the first instance and therefore the right of selection had passed to the claimant. The claimant chose Dr. Shogan. The respondents have appealed both the order of ALJ Jones and the order issued by ALJ Henk.
I.
The respondents first contend that ALJ Jones erred in determining that the claimant's December 28, 2007 injury arose out of her employment with the employer. The respondents, citing Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989) argue that where the cause of an injury is a pre-existing non-industrial condition which the claimant brings to the workplace, the injury is not compensable unless a "special hazard" of the employment combines with the preexisting condition to cause the injury. The respondents argue that to find that the act of merely bending over aggravated a preexisting condition would nullify the "special hazard rule." We disagree.
Preliminarily we note that to establish a compensable injury, the claimant had the burden to prove by a preponderance of evidence that the injury arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S.; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Under this standard, we are required to defer to the ALJ's resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
Under the Workers' Compensation Act, an employee is entitled to compensation where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment. Section 8-41-301(1), C.R.S.; Horodyskyj v. Karanian 32 P.3d 470 (Colo. 2001). The phrases "arising out of and "in the course of are not synonymous and a claimant must meet both requirements. Younger v. City amp; County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). Thus, an injury occurs "in the course of employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ'g Co., 38 Colo.App. 48, 51, 552 P.2d 1033, 1036 (1976). The parties do not dispute that the claimant's injury occurred in the course of her employment.
The term "arises out of refers to the origin or cause of an injury. Deterts v. Times Publ'g Co. supra. There must be a causal connection between the injury and the work conditions for the injury to arise out of the employment. Younger v. City County of Denver, supra. An injury "arises out of employment when it has its origin in an employee's work-related functions and is sufficiently related to those functions to be considered part of the employee's employment contract. Popovich v. Irlando supra.
In our opinion the respondents' reliance on Ramsdell v. Horn, supra, for the proposition that an injury is not compensable unless a "special hazard" of the employment combines with the preexisting condition to cause the injury is misplaced given the circumstances in the present case. In Ramsdell v. Horn, supra, it was held that injuries resulting from a fall from a twenty-five foot high scaffold were compensable even though precipitated by an epileptic seizure. The scaffold was considered to be a "special employment hazard" which aggravated the results of the fall. We recognize that when a claimant, during the course of employment, experiences an "idiopathic fall," or a fall attributable to a pre-existing condition, the resulting injuries are compensable if special hazards of the employment contributed to the risk or aggravated the injuries. Ramsdell v. Horn, supra. We further recognize that under the special-hazards doctrine, the alleged condition of employment "must not be a ubiquitous one; it must be a special hazard not generally encountered." Ramsdell v. Horn, 781 P.2d at 152.
However, in contrast here, ALJ Jones found that the claimant aggravated her preexisting condition while performing the action of bending over in the narrow supply room to reach for supplies for the cribs, an action which was required by her employment. The respondents concede that bending over was an action required by her employment. ALJ Jones found with record support that the claimant aggravated her preexisting back condition while performing a work-related activity. ALJ Jones was not persuaded by the opinion of Dr. Hughes that the claimant had sustained a natural progression of her preexisting condition and surgery.
In our view, this is not a case in which a preexisting condition was the precipitating cause of an injury. Therefore, the special hazards doctrine is inapplicable. Instead, the compensability determination made by ALJ Jones is well within the recognized rule that a compensable injury may be the result of an industrial aggravation of a preexisting condition as long as the aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). ALJ Jones could reasonably infer from the record evidence that the claimant's preexisting condition was aggravated by the December 28, 2007 industrial act of picking up the bag of diapers. Therefore, regardless of the ability of the evidence to support conflicting inferences, we must uphold the ALJ's determination. See F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
In our view, the respondents' reliance on Scully v. Hooters of Colorado Springs, W.C. No. 4-745-712 (October 27, 2008) is also misplaced. In Scully, the claimant was bussing tables for the employer and when she twisted to place dishes she felt the immediate onset of low back pain and spasms. The claimant had serious and chronic preexisting low back problems and had reported periodic exacerbations of symptoms without cause. In Scully the ALJ found that the twisting incident was merely another periodic exacerbation of her symptoms without cause as had occurred previously. The ALJ determined that the claimant did not suffer a new injury but merely experienced continuing symptoms from her chronic preexisting condition. The ALJ concluded that while occurring in the course of work, the incident did not cause an injury that arose out of work. In Scully the ALJ resolved the issue of whether a causal connection existed between the claimant's work and her injury by determining that the employee's preexisting condition was the direct cause of the injury. In contrast here the ALJ specifically rejected the opinion of Dr. Hughes that the claimant had sustained a natural progression of her preexisting condition and surgery.
Given the causal determination made by ALJ Jones that claimant aggravated her preexisting condition while performing the action of bending over in the narrow supply room, we agree with ALJ Jones that the special hazard rule had no application to the case. Therefore, we perceive no basis to disturb the order of ALJ Jones, which found the respondents liable for the claimant's compensable work injury of December 28, 2007 to her back.
Because we disagree with the respondents that ALJ Jones erred in failing to apply the special hazard rule we do not need to address the issue of whether the claimant's act of bending over on December 28, 2007 was a ubiquitous condition of employment. Nor are we persuaded by the respondents that the present case is analogous to cases involving unexplained falls.
II.
The respondents next contend that ALJ Henk erred in determining that Dr. Shogan and his referrals were authorized pursuant to § 8-43-404(5)(a) C.R.S. ALJ Henk determined that the emergency room visit on January 1, 2008 and the hospitalization on and after January 2, 2008 at HealthOne Rose Medical Center, and Dr. Shogan's surgery were emergency medical treatment. ALJ Henk further found that the respondents failed to designate a medical provider in the first instance and the right to select a provider passed to the claimant. We are not persuaded that ALJ Henk committed reversible error in her determination that Dr. Shogan and his referrals were authorized.
Section 8-43-404(5) provides that in all cases of injury, the employer or insurer shall provide a list of at least two physicians in the first instance, from which list an injured employee may select the physician who will attend him. If the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor. Rule of Procedure 8, 7 Code Colo. Reg. 1101-3 (2009) concerns initial medical referrals and in large part tracks § 8-43-404(5). Rule 8(2) provides that when an employer has notice of an on the job injury, the employer or insurer shall provide the injured worker with a written list in compliance with § 8-43-404(5)(a)(I)(A). If the employer fails to comply with this Rule 8-2, the injured worker may select an authorized treating physician.
Rule 8-2 makes specific provision for emergency situations. Rule 8-2(B) provides that in an emergency situation the injured worker shall be taken to any physician or medical facility that is able to provide the necessary care. Rule 8-2 further provides that when emergency care is no longer required the usual provisions relating to the employer's right in the first instance to select the medical care provider apply. In Colorado, the court of appeals has recognized an exception for emergency treatment to the employer's right to choose the treating physician. See Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).
Here, the respondents concede that the emergency treatment received by the claimant on January 1 and January 2, 2008 was authorized. The respondents acknowledge that the need for an ambulance on January 1, 2008 as well as her treatment at the emergency room prior to Dr. Shogan's involvement was authorized. However, the respondents contend that Dr. Shogan was not an authorized provider and that the surgery performed by him and his referrals after surgery were unauthorized.
The respondents argue that the claimant admitted she sought treatment with Dr. Shogan prior to reporting her claim on December 31, 2007 and further admitted the surgery on January 3, 2008 was not an emergency because Dr. Shogan had recommended epidural injection and physical therapy prior to surgery. The respondents contend the claimant elected not to pursue the more conservative treatment offered by Dr. Shogan and underwent surgery without notifying the insurer or employer. The respondents request an order denying the claimant's treatment with Dr. Shogan after the emergency had abated on January 2, 2008 before the January 3, 2008 surgery.
The questions of whether there is an emergency situation and whether there has been a medical referral are ordinarily questions of fact for determination by the ALJ. See Haverty v. Sam's Wholesale Club, W. C. No. 4-634-648 (December 19, 2005). See Sims v. Industrial Claim Appeals Office, supra (after emergency treatment ended claimant "required to notify her employer and give it a reasonable opportunity to furnish" subsequent treatment); Amorelli v. Amorelli Plumbing and Heating, Inc., W.C. No. 4-436-946 (September 26, 2001) (question of whether employer timely tendered services of physician after notice of an injury is one of fact). Thus, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). Gonzales v. Crowley County, W.C. No. 4-250-651 November 27, 2000.
ALJ Henk found the respondent failed to show that the claimant was referred to a designated provider before or after the claimant's January 2, 2008 surgery. ALJ Henk found that the emergency room visit on January 1, 2008, the hospitalization on and after January 2, 2008 and Dr. Shogan's surgery were emergency medical treatment. In making this determination ALJ Henk relied upon medical records and the claimant's testimony concerning her pain levels and inability to walk. Claimant's Exhibits for July 22, 2009 hearing at 22 26; Tr. (6/12/ 2008) at 30 33-35 Tr. (7/22/2009) at 28-29; Exhibit C at 22 24. ALJ Henk found that the claimant's supervisor did not refer the claimant to a designated provider when the claimant reported the injury on or after the surgery. Tr. (6/12/ 2008) at 31-31 Tr. (7/22/2009) at 29. ALJ Henk found the testimony of the claims adjuster was not persuasive. ALJ Henk found the claims adjuster notes of her conversation with the claimant on January 2, 2008 were detailed but did not contain any statements that she informed the claimant that Dr. Shogan and the surgery were not authorized and to seek treatment at a HealthOne Clinic. Claimant's July 22, 2009 hearing exhibits at 21.
In our view, there is substantial evidence in the record to support ALJ Henk's finding that the respondent failed to designate a medical provider in the first instance and the right to select a provider passed to the claimant. Therefore, we are not persuaded to disturb the ALJ's determination that Dr. Shogan and his referrals were authorized.
IT IS THEREFORE ORDERED that the order of ALJ Jones dated December 16, 2008 is affirmed.
IT IS FURTHER ORDERED that the order of ALJ Henk dated October 21, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
NORTH SUBURBAN MEDICAL CENTER, Attn: LESLIE GARNER, THORNTON, CO, (Employer).
ZURICH INSURANCE, Attn: MONICA WESTLUND — BROADSPIRE, C/O: BROADSPIRE SERVICES, INC., DENVER, CO, (Insurer).
THE LAW OFFICES OF W DAN MAHONEY, PC, Attn: W DAN MAHONEY, ESQ., DENVER, CO, (For Claimant).
SLEVIN DOTSON, PC, Attn: CINDY SLEVIN, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).