Opinion
W.C. Nos. 4-175-649, 4-211-377, 4-209-038, 4-209-331
March 18, 1996
FINAL ORDER
Fresh Express, and its insurer, the Colorado Compensation Insurance Authority, (CCIA respondents) seek review of an order of Administrative Law Judge Wells (ALJ) which requires them to pay medical benefits. We affirm.
The record reveals that the claimant sustained an admitted injury to her right arm on May 27, 1993, while employed by Doubletree Hotels Corporation (Doubletree). The claimant was subsequently employed by Deluxe/Current Inc. (Current) at a job she obtained through Olsten Staffing Services (Olsten). While employed at Current, the claimant experienced bilateral arm pain. Later the claimant left this employment and began working at Fresh Express.
While employed at Fresh Express the claimant's bilateral arm pain increased. Although no treating physician restricted the claimant from work, the claimant left Fresh Express on April 29, 1994, and has not returned to employment.
The ALJ determined that the claimant's upper extremity problems are the result of an occupational disease which developed during the claimant's employment at Doubletree and was aggravated by the claimant's employment at Current and Fresh Express. Because the claimant was last employed at Fresh Express, the ALJ ordered the CCIA respondents to pay for the claimant's medical treatment commencing April 29, 1994. The ALJ also designated Dr. Schwender as the treating physician.
On review, the CCIA respondents argue that liability for the claimant's occupational disease is governed by the statutory amendments enacted by Senate Bill 91-218 (SB 218) which are currently codified as § 8-41-304(1), C.R.S. (1995 Cum. Supp.). This statute provides that the employer in whose employ the claimant was last injuriously exposed to the hazards of an occupational disease and suffered a "substantial permanent aggravation" is solely liable for the claimant's compensation.
The CCIA respondents contend that the ALJ's order is insufficient to ascertain whether the ALJ applied the correct legal standard, because the ALJ failed to determine the date of injury, and made no finding concerning whether the claimant suffered a "substantial permanent aggravation" during her employment at Fresh Express. We reject this argument
The ALJ found that the claimant injured her right arm on May 27, 1993, but that her "ongoing symptoms" were the result of a "developing occupational disease which Claimant aggravated during the course of her employment with Olsten Temporary Services, Deluxe/Current Inc. and Fresh Express." (Conclusions of Law 1). Thus, the ALJ's findings inherently reflect his determination that the claimant sustained an occupational disease after July 1, 1991, the effective date of SB 218. See 1991 Colo. Sess. Laws ch. 219 at 1291; Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Furthermore, in Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986), our Supreme Court held that the term "compensation," as used in the predecessor to § 8-41-304(1), only refers to compensation in the form of disability benefits, and does not include medical benefits Rather, the court concluded that the insurance carrier "on the risk" at the time medical expenses are incurred for an occupational disease is liable for the payment of those expenses. 723 P.2d at 736.
Based upon Royal Globe, we have previously stated that liability for medical benefits in a claim based upon an occupational disease is determined under the usual rules governing liability for workers' compensation benefits. See Martinez v. Storage Technology, W.C. No. 4-175-875, August 31, 1995. Specifically, the insurer "on the risk" when medical expenses are incurred is the insurer which insured the employer whose conditions caused the need for treatment. We adhere to our prior conclusion here.
Accordingly, the ALJ was not required to determine whether the claimant was last injuriously exposed and suffered a substantial permanent aggravation during her employment at Fresh Express to resolve liability for the claimant's medical benefits. Rather liability for the disputed medical benefits is dependent on whether the claimant's employment at Fresh Express caused, aggravated, or accelerated the claimant's occupational disease. See Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Based upon the medical records of Dr. Schwender and Dr. Jenks, the ALJ found that the claimant's bilateral upper extremity problems were aggravated by her work at Fresh Express. (Tr. pp. 104-107), Finding of Fact 2; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). The ALJ's determination is supported by substantial evidence and plausible interpretation of the medical reports he found persuasive, and thus, is binding on review. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). This finding is also sufficient to support the ALJ's conclusion that the CCIA respondents are liable for the claimant's medical benefits. Royal Globe Insurance Co. v. Collins, supra.
The CCIA respondents also contend that the ALJ erred in designating Dr. Schwender to treat the claimant's occupational disease. In support the CCIA respondents cite § 8-43-404(5), C.R.S. (1995 Cum. Supp.), which allows the employer, "in the first instance" to select the physician who will treat the claimant's injury. We perceive no reversible error.
Notwithstanding their appellate argument, it is clear that Fresh Express had notice of the claimant's injury by the time of the hearing. See generally Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984). However, the CCIA respondents concede that they have not designated a physician to treat the claimant's injury. Under these circumstances, the right of selection passed to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). Furthermore, regardless of whether the CCIA respondents or the claimant selected a physician to treat the injury, § 8-43-404(5) affords the ALJ discretion to grant a change of provider upon a "proper showing." We have held that in so doing, the ALJ may grant a change of provider to a physician other than the provider proposed by the moving party. See Flowers v. Mobile Premix, Inc., W.C. No. 3-963-588, July 13, 1992.
The legal standard on review of an alleged abuse of discretion is whether, under the totality of the factual circumstances at the time of the ALJ's determination, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). The application of this standard includes consideration of whether the ALJ's determination is supported by the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
As we read the ALJ's order, he denied the claimant's request for a change of physician to Dr. Higgenbothem, and instead, granted permission for the claimant to treat with Dr. Schwender. (Tr. pp. 34, 109, 110); CAN-USA Construction, Inc. v. Gerber, supra. The ALJ orally stated that his designation was based upon the fact that Dr. Schwender was already familiar with the case, and Dr. Schwender recognized the distinction between the claimant's injury at Doubletree and her occupational disease. (Tr. p. 110). The ALJ also indicated that he selected Dr. Schwender because Dr. Schwender practices at the medical center frequently designated by the CCIA respondents, and he sought to select a physician who would not be "particularly objectionable" to the CCIA respondents.
The ALJ's findings inherently reflect his determination that the claimant made a "proper showing" for a change of provider. Moreover, there is substantial evidence in the record to support the ALJ's findings concerning Dr. Schwender's familiarity with the claimant's occupational disease. Therefore, we cannot say that the ALJ abused his discretion in granting permission for the claimant to treat with Dr. Schwender.
IT IS THEREFORE ORDERED that the ALJ's order dated February 16, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Kathy E. Dean _____ Bill Whitacre NOTICEThis 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. (1995 Cum. Supp.).
Copies of this decision were mailed March 18, 1996 to the following parties:
Lynn Rigdon, P. O. Box 6185, Colorado Springs, CO 80934
Doubletree Hotels, 4 S. Cascade Ave., Colorado Springs, CO 80903
Olsten Staffing Services, 6035 Erin Park Dr., Colorado Springs, CO 80918
Deluxe/Current, Inc., 1025 E. Woodmen Rd., Colorado Springs, CO 80918
Fresh Express Colorado, Inc., 3147 N. Century Blvd., Colorado Springs, CO 80907
Aetna Life Casualty Company, Attn: Leah Rhone, P. O. Box 173712, Denver, CO 80217
Hartford Insurance Company, Attn: Reggie Vaughn, P. O. Box 221700, Denver, CO 80222
Travelers Indemnity Company, % Travelers Insurance Co., P. O. Box 17360, Denver, CO 80217
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq., — (Interagency Mail)
Paul D. Feld, Esq., 999 18th St., Ste. 3100, Denver, CO 80202
(For the Respondents Fress Express CCIA)
Steven R. Waldmann, Esq., 303 S. Circle Dr., #202, Colorado Springs, CO 80910 (For Claimant)
BY: _____