Opinion
W.C. Nos. 3-963-65, 94-179-455
April 8, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant failed to prove a compensable occupational disease, and therefore, denied and dismissed the claim. We affirm.
The claimant suffered injuries during a motor vehicle accident on October 28, 1989, while working for Ideal Concrete (Ideal). The respondents admitted liability and paid benefits. In August 1990, Dr. Ciccone placed the claimant at maximum medical improvement (MMI) with 5 percent permanent partial disability. Dr. Ciccone also restricted the claimant from lifting over 10 pounds. In February 1991, the claimant returned to Dr. Ciccone with complaints of pain in his back, right shoulder and right elbow. Dr. Ciccone referred the claimant to Dr. McLellan for additional treatment, but opined that the claimant remained at MMI.
On April 19, 1991 the claimant returned to work for Ideal as a line setter. The ALJ credited the claimant's testimony that he did not want to return to work because he did not feel sufficiently recovered from the 1989 injury. The ALJ also found that the duties of a line setter exceeded the claimant's medical restrictions for the 1989 injury.
The claimant testified that he experienced increasing pain over the first week of work, and that the pain gradually impaired his ability to perform his job duties. As a result, he returned to Dr. McLellan, who diagnosed right sided thoracic outlet syndrome (TOS) "secondary" to the 1989 accident. Dr. McLellan also opined that the TOS is "being exacerbated by his current work."
Thereafter, the claimant filed a new claim alleging an injury on June 28, 1991, in the nature of an occupational disease affecting his back and neck. The respondents denied liability.
The ALJ found that the claimant's need for ongoing medical treatment related back to the 1989 industrial injury. In so finding, the ALJ credited Dr. Griffis' opinion that the claimant's work as a line setter resulted in an increase of pain to the same body parts that were affected by the 1989 injury, and did not cause an occupational disease. Dr. Griffis, noted that when the claimant stopped working as a line setter his symptoms returned to the level they had been before April 19, 1991. Dr. Griffis also noted that the claimant had permanent impairment at the time he returned to work in April 1991, and sustained no additional "permanent medical impairment" as a result of increased pain due to the demands of his work as a line setter. Therefore, in an order dated April 8, 1997, the ALJ denied the new claim and ordered the respondents to provide additional medical benefits in the 1989 injury claim.
The claimant filed a timely Petition for Review of the April order alleging that the ALJ's findings of fact do not support the order. The claimant later filed a pleading entitled "Brief in Support of Petition to Review, Petition to Reopen and/or Motion for Supplemental Order." As to the "Petition to Reopen" the claimant sought to present additional evidence in the form of Dr. McLellan's affidavit. On December 1, 1997, the ALJ issued an order entitled "Supplemental Findings of Fact, Conclusions of Law and Order," in which she denied the petition to reopen. No appeal was taken from the December 1 order and the case was subsequently transmitted to us for review of the April order.
We note that we lack jurisdiction to review an ALJ's supplemental order where no party has filed a timely petition to review the supplemental order. Section 8-43-301(6), C.R.S. 1997; Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). However, we conclude that § 8-43-301(6) does not bar our review of the April order.
A supplemental order is an order which is "limited to the matters raised in the petition to review." Section 8-43-301(5), C.R.S. 1997. Furthermore, it is only necessary to preserve an appeal by the filing of a petition to review a supplemental order if the supplemental order addresses one or more issues raised in the petition to review. Memorial Hospital v. Industrial Claim Appeals Office, (Colo.App. No. 88CA0284, November 3, 1998) (not selected for publication); compare Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146 (Colo.App. 1988).
Here, the sole issue addressed in the ALJ's order of December 1 was the claimant's procedural request to reopen the evidence for purposes of submitting the affidavit of Dr. McLellan. The request was neither raised at hearing nor in the petition to review. Rather, it was first raised in the claimant's combined brief and motion to reopen.
Although the better practice is to file a brief in support of the petition to review and a separate motion to reopen the claim, we decline to dismiss the appeal just because the two pleadings were combined. To do so would elevate form over substance. Cf. Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) (mailing cover letter to ALJ constituted "substantial compliance" with requirement for certificate of mailing to ALJ).
Accordingly, we conclude that the December 1 order is not a "supplemental order" as contemplated by § 8-43-301(6). See Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980) (the substance of a document, and not its title, is determinative). Rather, the December 1 order denied a request to reopen the claim for reasons unrelated to the petition to review. This conclusion is buttressed by the fact that ALJ transmitted the matter to us for review of the April order despite the absence of a petition to review the December 1 order. Therefore, we shall proceed to consider the claimant's substantive arguments.
The claimant contends, inter alia, that the ALJ's findings of fact reflect her erroneous determination that an occupational aggravation of a pre-existing condition is insufficient to establish a new injury unless the aggravation results in "permanent" disability. We disagree.
As argued by the claimant, the existence of a pre-existing disease does not preclude a claimant from sustaining a compensable injury. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990). Rather, a compensable injury may result from the aggravation of a pre-existing condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Pain is a typical symptom caused from the aggravation of a pre-existing condition. Insofar as the pain triggers the claimant's need for medical treatment, the claimant has suffered a compensable injury. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). In other words, the claimant is entitled to medical benefits for the aggravation, so long as the pain is proximately caused by the industrial aggravation and is not simply a direct and natural consequence of the original injury. Cf. Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986). However, a series of decisions demonstrates that the mere increase in pain or other symptoms associated with a prior injury does not compel the finding of a new injury. See F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985); Barba v. RE1J School District, W.C. No. 3-038-941 (June 28, 1991); Hoffman v. Climax Molybdenum Company, W.C. No. 3-850-024 (December 14, 1989); Kish v. Burger King, W.C. No. 3-629-394 (October 20, 1989).
Where the alleged injury is in the nature of an "occupational disease," the claimant must prove that the disease results "directly from the employment or the conditions under which work was performed" and is a "natural incident" of the work. However, the claimant is not required to prove that the industrial exposure has caused permanent impairment. To the contrary, the "temporary" aggravation of a pre-existing condition is compensable, as long as the industrial exposure is the proximate cause of the claimant's disability. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988); see also Conry v. City of Aurora, W.C. No. 4-195-130, April 24, 1996. (industrial ammonia exposure resulted in compensable temporary aggravation of pre-existing asthma). Proof of a "permanent" aggravation is only required when there is an occupational disease in the first instance, and multiple employers or insurers are seeking to determine liability for the injury. Section 8-41-304(1), C.R.S. 1997; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Accordingly, a claimant is not required to prove a "permanent" aggravation under circumstances such as presented here, where the issue was whether the claimant suffered an occupational disease in the first instance.
Here, the ALJ considered several factors in finding that the claimant's need for continuing treatment is attributable to the 1989 injury and not a new injury. For example, the ALJ found that the claimant complained of and obtained treatment for back, shoulder and elbow pain shortly before he returned to work. (Finding of Fact 4). In addition, the ALJ relied upon the claimant's admission that his symptoms in June 1991 were the same as they had been in April 1991. (Finding of Fact 13). Further, the ALJ found that at MMI Dr. Ciccone restricted the claimant to lifting no more than 10 pounds. Thus, the ALJ could reasonably infer that Dr. Ciccone anticipated an exacerbation of the claimant's symptoms from the 1989 injury if he performed work which required lifting over 10 pounds.
Moreover, Dr. Griffis' opinion that claimant did not suffer additional permanent impairment from the increase of pain caused by his work as a line setter is consistent with the ALJ's finding that the claimant's need for additional treatment was due to the permanent effects of the 1989 injury and not a new injury. Therefore, we do not read the ALJ's order as reflecting her erroneous presumption that the claimant was required to prove a "permanent" aggravation to establish a new injury.
In view of our conclusion we necessarily disagree with the claimant's contention that the ALJ's findings compel a conclusion that the claimant proved an occupational disease. Similarly, we do not believe Dr. Griffis' opinions compel such a conclusion. Although Dr. Griffis agreed with Dr. McLellan that the claimant's TOS was "secondary" to the 1989 injury and "exacerbated" by his work as a line setter, Dr. Griffis believed that the claimant's need for additional treatment was still a natural consequence of the 1989 injury.
IT IS THEREFORE ORDERED that the ALJ's order dated April 8, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. DeanNOTICE 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 8, 1998 to the following parties:
Arnaldo Parra, 3090 Post Oak Drive, Colorado Springs, CO 80916
Clarence Gianarelli, Ideal Construction, 2475 Waynoka Place, Colorado Springs, CO 80915
Angie Abts, Wausau Insurance, 10975 El Monte, Overland Park, KS 66211-1497
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484 (For the Claimant)
Harry A. King, Jr., Esq., 679 Grant St., Denver, CO 80203 (For the Respondent)
BY: _______________________