Opinion
W.C. No. 4-560-612.
November 18, 2005.
ORDER OF REMAND
The claimant seeks review of an order dated March 15, 2005 of Administrative Law Judge Jones (ALJ) that ordered apportionment of medical benefits, temporary disability benefits and permanent partial disability benefits. The claimant contends that the ALJ erred in apportioning benefits and in refusing to apply the equitable defenses of waiver, estoppel, and laches. Because we conclude that the ALJ's factual findings are insufficient to permit appellate review, we set aside the order and remand for further findings.
The ALJ's pertinent findings of fact are as follows. The claimant sustained compensable injuries to his low back on November 7, 2002, and the insurer's claims adjuster investigated the claim and subsequently admitted liability on December 17, 2002. The adjuster relied upon the opinions of the claimant's treating physicians, Dr. Jernigan and Dr. Youssef that the claimant's low back condition was entirely related to the compensable injury. Subsequent investigation disclosed to the insurer that the claimant had a history of low back pain beginning with a compensable injury in 1990. Despite the claimant's various reports to his treating doctors minimizing the severity of his previous back problems, the claimant testified at the hearing that he had previously herniated a disc in his lumbar spine, at the same level that was injured in this claim. He further testified that he had experienced low back pain since 1984, again of the same type as the pain created by this injury.
The ALJ weighed the medical testimony and credited the opinion of Dr. Youssef that 25 percent of the claimant's disability should have been apportioned to his preexisting back conditions and 75 percent to the compensable injury. The ALJ concluded that the claimant's back condition was the result of the combination of his previous injuries, his degenerative condition, and the compensable claim. Accordingly the ALJ apportioned out 25 percent of the claimant's medical and indemnity benefits, and ordered that the respondents were only liable for 75 percent of the benefits and compensation.
On appeal the claimant argues that the ALJ's order apportioning medical benefits and temporary total disability benefits is not supported by substantial evidence in the record, that the ALJ erred in apportioning the claimant's permanent partial disability benefits, that the ALJ erred in granting retroactive apportionment of benefits, and that the ALJ erred in failing to impose the equitable principles of waiver, estoppel and laches.
The claimant first contends that the ALJ's apportionment of temporary disability benefits and medical benefits in this case is unsupported by the record and by applicable law. We conclude that the ALJ's factual findings are insufficient to permit appellate review.
It is established that it is proper to apportion liability for medical benefits and temporary disability benefits if the claimant's condition is caused by successive industrial injuries and both injuries contribute to the need for medical treatment and the temporary disability. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004). These causation issues are generally factual in nature and we must uphold the ALJ's findings if supported by substantial evidence. § 8-43-301(8), C.R.S. 2005; University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).
However, despite the factual nature of these questions, we have previously stated that Duncan does not authorize apportionment of medical benefits to a preexisting, non-industrial condition where that condition is aggravated by, accelerated by, or combines with an industrial injury to produce the need for treatment. See Combs v. STC Communications, W.C. No. 4-607-701 (October 11, 2005); Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005). We stated in Weber that:
We . . . do not read Duncan v. Industrial Claim Appeals Office, supra. as initiating a new rule of law which permits the apportionment of medical expenses to non-industrial conditions where the industrial injury combines with those conditions so as to cause the need for treatment. As Duncan itself recognizes, the prior cases allowing apportionment of medical expenses involve situations where the claimant sustained successive industrial injuries and those injuries actively contributed to the claimant's current need for treatment.
In the absence of authority from the appellate courts holding otherwise, we are not persuaded to depart from this reasoning. Accordingly, we decline to interpret Duncan as permitting apportionment of medical costs and temporary disability benefits attributable to non-industrial conditions.
Although the ALJ made reference to a number of previous injuries sustained by the claimant, some of which may have been industrial, it is unclear from the findings whether the ALJ found all of these injuries to have occurred and, if so, the extent to which they contributed to the claimant's present disability and need for medical treatment. For example, the ALJ referred to the claimant's "report" of a 1988 low back injury while working for Breckenridge Ski Corporation. Findings of Fact, Conclusions of Law, and Order at 2, ¶ 4. She also found that the insurer discovered records of a work-related injury that occurred in 1990, again while the claimant was employed at the Breckenridge Ski Corporation. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 11. She did find that an admission of liability was filed for this injury and that benefits and compensation were paid; however, she did not enter findings concerning the specific contribution of this injury to the claimant's present need for medical treatment and disability. Further, the ALJ entered factual findings concerning the claimant's report that he had injured himself during sports activities, and that a previous employer reported claims from 1999 and 1987. Findings of Fact, Conclusions of Law, and Order at 4, 5, ¶ 14, 20.
Here, we are unable to discern from the ALJ's findings the extent to which she apportioned out of the claimant's benefits disability attributable to prior industrial injuries and the extent to which she found that the claimant's preexisting degenerative conditions were causative factors in his disability and his need for medical treatment. The ALJ concluded that "Claimant offered no credible or persuasive evidence establishing that his lower back condition is entirely related to this claim." Findings of Fact, Conclusions of Law, and Order at 8, ¶ 3. She then stated that "[t]herefore, the respondents have satisfied the requirements of Duncan, supra." Id. However, in order to obtain medical and indemnity benefits the claimant does not have the burden of establishing that a condition is "entirely related" to a compensable injury or occupational disease. Rather, the burden is on the respondents to establish the extent to which the prior industrial injury was a causative factor in the claimant's condition. As noted, in our view Duncan authorizes apportionment of only the contribution of the prior industrial injury or injuries, and not the contribution of any preexisting nonindustrial condition unrelated to any industrial injury.
Therefore, on remand the ALJ must enter findings of fact concerning the previous industrial injury or injuries sustained by the claimant and the extent to which that injury or injuries contributes to the claimant's disability or need for treatment.
Because of our resolution of this issue and the remand of this matter for further findings, it is unnecessary for us to address the remaining questions raised by the claimant on appeal.
IT IS THEREFORE ORDERED that the ALJ's order dated March 15, 2005, is set aside and remanded for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL ____________________ Curt Kriksciun ____________________ Thomas Schrant Steve A. Stahl, Durango, CO, Animas Fire Protection District, Durango, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).