Opinion
W.C. No. 4-473-725
March 10, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which requires the respondents to pay for 20 percent of the claimant's oxygen treatments. The claimant argues the order constitutes an improper apportionment of medical benefits. We reverse.
On August 21, 2000, the claimant sustained compensable injuries when he fell off a truck. The injuries included a pneumothorax and the development of pneumonia.
Before the industrial injury, the claimant was able to perform work and household chores without oxygen. However, since the injury, the claimant has been dependent on oxygen therapy, and probably will require oxygen for the rest of his life.
The claimant's treating physician, Dr. Aylor, opined the claimant suffered from preexisting emphysema which probably rendered the claimant hypoxic before the industrial injury. In a report dated March 30, 2001, Dr. Aylor stated that although the claimant's pulmonary condition might be solely related to the emphysema, "it would be my impression following my discussion with Dr. Wilcox that 20% of his pulmonary condition at this point would be related to his work related condition." (Claimant's Exhibit 6).
The ALJ credited the claimant's testimony that he was able to work without oxygen before the industrial injury, and Dr. Aylor's opinions concerning the preexisting emphysema and the relative contributions of emphysema and the industrial injury to the claimant's need for oxygen treatment. Consequently, the ALJ found the industrial injury "contributed 20% to the claimant's lifetime need for oxygen therapy," and ordered the respondents to pay 20 percent of the claimant's oxygen expenses.
On review, the claimant argues the ALJ improperly apportioned liability for the oxygen treatment. Under the facts found by the ALJ, we agree.
The claimant is entitled to reasonable and necessary medical benefits to cure and relieve the effects of the injury. Section 8-42-101(1)(a), C.R.S. 2002. The claimant must prove the need for treatment was proximately caused by an injury arising out of and in the course of employment. Section 8-41-301(1)(c), C.R.S. 2002; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The mere fact that the claimant suffers from a preexisting condition does not disqualify the claimant from receiving workers' compensation benefits. If the industrial injury "aggravates, accelerates, or combines with" a preexisting disease or infirmity to produce the need for treatment, the treatment is a compensable consequence of the industrial injury. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Implicit in this rule is the principle that the industrial injury need not be the sole cause of the need for treatment provided it is a "significant cause." Thus, if there is direct causal link between an industrial injury and the need for treatment, it is not necessary that the industrial injury be the principal cause of the need for treatment. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
Here, the ALJ's findings compel the conclusion that the industrial injury has "combined" with the preexisting emphysema to produce the need for oxygen therapy. The ALJ credited evidence that although the claimant may have had symptoms of emphysema before the industrial injury, he was not receiving any treatment for that condition, including oxygen. In fact, the ALJ found the claimant was able to perform his regular employment as a delivery driver without the aid of oxygen. (Findings of Fact 4 and 6). After the injury, the ALJ found the claimant became "dependent" on oxygen. In our view, these findings result in the legal conclusion that the claimant's post-injury need for oxygen is the result of a combination of the preexisting emphysema and the effects of the industrial injury. Hence, the claimant proved the need for oxygen is a compensable consequence of the industrial injury. H H Warehouse v. Vicory, supra; Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (question of causation may become one of law if facts are undisputed and reasonable minds can draw only one conclusion). The mere fact that emphysema was the greater of the two causes of the need for oxygen does not vitiate the direct causal relationship between the injury and the need for treatment. Seifried v. Industrial Commission, supra. Indeed, the ALJ did not find the claimant would need 20 percent less oxygen if the industrial injury had not occurred, and the physicians did not issue such an opinion.
Having determined that the need for oxygen is a compensable consequence of the industrial injury, the question is whether the cost of such treatment may be apportioned between the industrial injury and the preexisting emphysema. We have previously held that where the need for medical treatment is predicated on the industrial aggravation of a preexisting non-industrial condition, the Workers' Compensation Act does not provide for apportionment of medical benefits. The rationale for these decisions is that the statute contains no authority for apportioning medical benefits, as it does for apportioning permanent disability under § 8-42-104(2)(a), C.R.S. 2002. Moreover, our appellate courts have declined to permit apportionment of temporary disability benefits where the wage loss is to some degree caused by the industrial injury. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996) (in a case not involving termination of employment, the court held that the industrial injury need not be the sole cause of the wage loss). We decline to depart from our view that the apportionment of medical benefits is prohibited under the circumstances present here. See Wyatt v. Office Depot, Inc., W.C. No. 4-285-014 (February 14, 2002); Allison v. City of Colorado Springs, W.C. No. 4-325-885 (June 18, 1998).
Williams v. Pizza Hut, W.C. No. 4-448-209 (October 22, 2002), cited by the respondents, is not authority to the contrary. Although the ALJ in that case apportioned medical benefits, the propriety of the apportionment was not the issue on appeal. Rather, the respondents appealed the ALJ's factual determination that the claimant's need for treatment was in any way related to the industrial injury. Hence, Williams did not purport to address the issue raised in this case.
In light of these determinations, we need not reach the claimant's remaining argument which analogizes apportionment of medical benefits to apportionment of permanent disability benefits. We do note, however, that we previously rejected this analogy. Torgerson v. Wycon Construction, W.C. No. 4-336-530 (April 13, 1999).
IT IS THEREFORE ORDERED that the ALJ's order dated July 18, 2002, is reversed, and the respondents are to pay the full cost of the claimant's oxygen treatment.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
Examiner Halsey dissents: It is unclear to me whether the ALJ has found the claimant's need for oxygen therapy pre-existed the industrial injury, which I believe would be a reasonable inference from Dr. Aylor's reports. Insofar as the volume of oxygen or frequency of treatment needed has merely been increased by the industrial injury, I believe an apportionment of liability could be proper. Consequently, I would remand the case to the ALJ for clarification of his findings, and based thereon, a new order.
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. 2002. 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 March 10, 2003 to the following parties:
Jimmie Nicholl, 5068 Umatilla St., Denver, CO 80221
Canino Sausage Co., Inc., 4414 Jason St., Denver, CO 80211
Victoria Williams, The Hartford Casualty Co., Houston W.C. Claim Center, P. O. Box 4626, Houston, TX 77210-4626
David R. DiGiacomo, Esq., 5400 Ward Rd., Bldg. III, #200, Arvada, CO 80002-1822 (For Claimant)
Douglas J. Kotarek, Esq., 40 Inverness Dr. East, Englewood, CO 80112 (For Respondents)
Bradley R. Unkeless, Esq., 7670 S. Chester St., 3300, Englewood, CO 80112 (For Respondents)
By: A. Hurtado