Opinion
W.C. No. 4-188-242
April 9, 1997
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which awarded the claimant medical benefits for an occupational disease. We affirm the order in part, set it aside in part, and remand for entry of a new order.
The ALJ found that the claimant suffered a compensable occupational disease which developed, at least in part, due to repetitive motions she performed in her employment. The onset of this disease occurred in February 1993, and affected the claimant's right upper extremity.
The ALJ found that some physicians who examined the claimant diagnosed her condition as tenosynovitis and possibly carpal tunnel syndrome. The respondents' examining physician, Dr. Fry, opined that the claimant had mild brachial plexitis, lateral epicondylitis, and "neuritic symptoms." In his report, Dr. Fry opined that the plexitis was not work-related, that the epicondylitis was twenty-five percent related to the claimant's employment, and that the neuritis was twenty percent related to the claimant's employment. Further, in his deposition, Dr. Fry testified that "somewhere around fifteen percent" of the claimant's "diagnoses" are related to her employment. Dr. Fry went on to state that impairment ratings under the AMA Guides do not "go by simple mathematics."
The ALJ found that the claimant proved that she received reasonable and necessary medical treatment, and found that several physicians were "authorized" to treat the disease. Moreover, the ALJ stated that any apportionment of the medical benefits would be improper because "apportionment should only be considered with regard to permanent physical impairment in occupational disease cases." The ALJ also held that any apportionment was premature because "no treating physician has yet performed an impairment rating."
I.
On review, the respondents first contend that the ALJ erred in determining that the claimant sustained a compensable occupational disease. The respondents assert that the claimant failed to carry her burden of proof because "of the substantial percentage of non-work-related exposure to which Dr. Fry attributed Claimant's condition." We reject this argument.
An occupational disease is one which results from the conditions under which the work was performed, can be seen to have followed as a natural incident of the work, can be traced to the employment as a proximate cause, and "does not come from a hazard to which the worker would have been equally exposed outside of the employment." Section 8-40-201(14), C.R.S. (1996 Cum. Supp.). This statute does not require that the employment be the sole cause of the claimant's disease, so long as the evidence demonstrates that the "hazards of employment cause, intensify, or aggravate-to some reasonable degree-the disability for which compensation is sought." Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
An ALJ's determination that the conditions of employment have, to a reasonable degree, caused, aggravated or intensified a disease must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Causation need not be proven by medical evidence. However, to the extent medical evidence is offered, it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents' argument notwithstanding, the record contains substantial evidence to support the ALJ's finding that the claimant sustained a compensable occupational disease. The claimant testified that she performed repetitive motion in the course of her employment, and that these motions produced pain. (Tr. pp. 9, 12, 20). Moreover, the respondents own examining physician, Dr. Fry, attributed at least some of the claimant's problems to the effects of her employment. The mere fact that some evidence might support a contrary conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1986). Thus, we must uphold that portion of the order which determined that the claimant sustained a compensable occupational disease.
II.
The respondents next contend that the ALJ erred in failing to apportion the claimant's medical benefits in accordance with Anderson v. Brinkhoff. Respondents cite that portion of Dr. Fry's testimony in which he estimated that fifteen percent of the claimant's "diagnoses" were attributable to the conditions of her employment. Because the ALJ may have applied an incorrect legal standard, we remand for entry of a new order on the issue of apportionment.
In Anderson, the supreme court held that, in cases where there is no evidence that an occupational exposure to a hazard is a necessary precondition to the development of a disease, "the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." Anderson v. Brinkhoff, 859 P.2d at 825. Where the respondents succeed in establishing that a portion the claimant's "disability" is caused by non-industrial factors, they are entitled to an apportionment in accordance with the evidence. Anderson v. Brinkhoff, supra.
Moreover, as the facts in Anderson exhibit, the apportionment applies to all benefits, including medical benefits. This is true because the purpose of the equally exposing stimulus language of § 8-40-201(14) is to require proof that the employment is the cause of the disability, and thus, insure that the Workers' Compensation Act will not become a "general health insurance act." Anderson v. Brinkhoff, 859 P.2d at 823.
It follows that the ALJ erred in holding that apportionment is "premature" because apportionment may occur only "with regard to permanent physical impairment in occupational disease cases." To the contrary, Anderson does not require an ALJ to determine the ultimate degree of "medical impairment" caused by occupational and non-occupational factors. Rather, the ALJ must assess the available evidence and determine the degree to which the claimant's "disability" is caused by occupational and non-occupational hazards. Anderson in no way requires the ALJ to utilize "medical impairment" as the yardstick of apportionment. Cf. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996) (for purposes of apportioning permanent partial disability, medical impairment cannot be equated to disability).
Here, portions of Dr. Fry's testimony would support the inference that fifteen percent of the claimant's overall "disability" and need for treatment is attributable to work-related hazards, while the remaining causes of the claimant's disease are attributable to non-industrial hazards. We cannot say how the ALJ would have assessed Dr. Fry's testimony had he applied the correct legal standard.
On remand, the ALJ shall determine whether apportionment is appropriate, and if so, apportion medical benefits according to his findings. In reaching this result, we should not be understood as expressing any opinions concerning the weight, credibility, or inferences to be drawn from Dr. Fry's testimony and the other evidence.
III.
The respondents' final argument is that the ALJ erred in determining that certain physicians were "authorized" to treat the claimant. The respondents argue that the claimant's application for hearing raised only the issue of the reasonableness and necessity of medical benefits, not the issue of authorization. Consequently, the respondents argue that they were denied due process of law by consideration of the authorization issue. We are not persuaded.
It is certainly true that the respondents were entitled to notice of the issues and evidence to be considered at the time of the hearing. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is also true that the issues of "authorization" and reasonableness and necessity for treatment constitute separate legal issues. See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
However, in the procedural context of this case, we perceive no error in the ALJ's decision to address the authorization issue. The case was postured as a "full contest," including the issues of compensability and medical benefits. (Tr. p. 3). At the hearing, the claimant offered medical records from various physicians who treated her, as well as her own testimony concerning the treatment. At no time did the respondents object that they were unprepared to address the claimant's entitlement to treatment by these physicians on the grounds that they were unprepared to address the issue of authorization. Under these circumstances, we believe that the issue of "authorization" was fairly raised, and that the respondents waived any objection they may have had by failing to object to consideration of the issue at the time of the hearing. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Vallejos v. Professional Drivers, Inc., W.C. No. 4-191-880 and 4-191-881 (April 21, 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated December 19, 1995, is affirmed insofar as it determined that the claimant sustained a compensable occupational disease, and determined that various medical providers were authorized to treat the claimant.
IT IS FURTHER ORDERED that the order is set aside insofar as the ALJ ordered the respondents to pay medical benefits without apportionment. The matter is remanded for entry of new findings of fact and conclusions of law concerning whether or not the respondents are entitled to apportionment of medical benefits.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed April 9, 1997 to the following parties:
Cathy C. Roberts, 2421 14th Ave., Greeley, CO 80631
StarPak, Inc., Attn: Kevin Cory, 237 22nd St., Greeley, CO 80631
Liberty Mutual Fire Ins., Attn: Michelle Montoya, 1311 E. Briarwood Ave.,
Englewood, CO 80112
Raymond A. Melton, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For the Respondents)
John Hoyman, Esq. Timothy Ukockis, Esq., 1115 Eleventh Ave., Greeley, CO 80631
(For the Claimant)
By: ___________________________________________________