Opinion
W.C. No. 4-285-014
February 14, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ Henk) insofar as it requires them to provide oxygen as a medical benefit. The respondents assert the record lacks substantial evidence that the claimant's need for oxygen was caused by the injury rather than the claimant's preexisting condition. We affirm.
The claimant sustained a compensable knee injury on September 10, 1995, and subsequently underwent surgery. The claimant was placed at maximum medical improvement (MMI) on July 8, 1996. The claimant subsequently filed a petition to reopen based on worsened condition citing an increase in knee pain, as well as a worsening of preexisting vascular insufficiency, congestive heart failure, and obesity. The claimant reasoned that inactivity associated with ongoing knee pain aggravated the preexisting conditions. ALJ Erickson granted the petition to reopen on March 10, 1998.
Subsequently, the matter proceeded to hearing before ALJ Henk concerning, inter alia, whether or not the respondents are obligated to pay for oxygen. In an order dated November 9, 2000, ALJ Henk credited the opinion of Dr. Ryan that the compensable knee injury "and resulting decline in activity were likely the aggravating factors contributing to" the claimant's preexisting vascular, cardiopulmonary and circulatory difficulties, and weight gain. The ALJ further credited the opinion of Dr. Ryan that oxygen is necessary to enable the claimant to begin an exercise program and pool therapy necessary to treat the claimant's knee injury.
On review, the respondents contend the record lacks substantial evidence the claimant's need for oxygen was caused by the industrial injury rather than claimant's preexisting cardiopulmonary disease. In support of this proposition the respondents rely on the reports and testimony of Dr. Hughes. Dr. Hughes opined the claimant's need for oxygen was caused by preexisting chronic obstructive pulmonary disease (COPD) secondary to the claimant's cigarette smoking. Further, he opined the claimant's lack of exercise would not aggravate the preexisting condition. (Tr. pp. 41-43, 45). We find no error.
Preexisting disease does not disqualify a claimant from receiving workers' compensation benefits if the industrial injury "aggravates, accelerates, or combines with the disease or infirmity to produce the disability" or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). The question of whether the claimant proved a causal connection between the industrial injury and the alleged aggravation or acceleration is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Because the issue is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Thus, to the extent there are conflicting expert medical opinions, it is for the ALJ to determine the relative weight and credibility of the opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ is not obliged to credit the opinion of an expert even if it is undisputed and unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
The respondents' assertion notwithstanding, the record contains substantial evidence from which ALJ Henk could find the industrial injury aggravated the claimant's preexisting conditions so as to cause the need for increased oxygen. In a report dated October 16, 1997, Dr. Ryan stated the claimant was suffering from "extreme vascular insufficiency" probably worsened by the "sedentary circumstances" resulting from the industrial injury. Dr. Ryan recommended pool therapy which would allow the claimant "to participate in exercise which will increase the return flow from his lower extremities, without irritating the knee." On February 16, 2000, Dr. Ryan opined the claimant "clearly needs the oxygen" to exercise, and at "four liters per minute, he needs a great deal of oxygen." Dr. Ryan further stated that the conditioning program augmented by oxygen might not only improve the claimant's knee, but might "improve his overall state of physical conditioning, so that he will need less ventilatory assistance than he does now." On April 17, 2000, Dr. Ryan stated that although the claimant had a preexisting "fragile medical condition" which made him susceptible to a "catastrophic cascade of events," it was the knee problem which precipitated the chain of causation. The latter remarks were made after Dr. Ryan reviewed Dr. Hughes' written opinions concerning the issue of causation.
It is certainly true that some evidence, including the opinions of Dr. Hughes, would support a conclusion the claimant's need for oxygen was not caused by the industrial injury, but solely by his preexisting conditions. However, in light of the conflicting expert opinions contained in the record, the issue of causation was one of fact for ALJ Henk, and we decline the respondents' invitation to substitute our judgment for hers concerning the proper inferences to be drawn from the record.
However, even if we were to assume the claimant's need for oxygen is related solely to the preexisting conditions, the facts in this case would not relieve the respondents of liability. In Public Service Co. v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999), the Court of Appeals upheld the compensability of psychological treatment for a preexisting condition where the psychological treatment was necessary to the success of surgery required to treat the industrial injury. Citing Professor Larson's treatise, the court stated that "ancillary preoperative treatment is a pertinent rationale for reasonably necessary care of a non-industrial disorder, when such must be given `in order to achieve the optimum treatment of the compensable injury.' [Citation omitted]." Id. at 585. Here, Dr. Ryan's reports provide substantial evidence to support the conclusion that oxygen therapy for the claimant's cardiovascular problems is a necessary prerequisite to providing the pool therapy required to treat the claimant's knee condition. Indeed, ALJ Henk expressly credited Dr. Ryan's February 16 report that "in order for the Claimant to exercise, he needs oxygen."
Finally, the respondents argue that even if they are required to pay for oxygen, they should only be required to pay for oxygen "during the time [the claimant] is engaged in the pool therapy or re-conditioning program." However, we have previously held the Workers' Compensation Act does not provide for apportionment of medical benefits between compensable injuries and preexisting non-industrial conditions. Martin v. Montrose Memorial Hospital, W.C. No. 4-348-316 (July 10, 1998). In any event, the respondents have not provided any factual basis upon which such an apportionment could be made even if it were legally permissible. Put another way, the record does not establish the point in time at which oxygen would cease to be necessary in order to support the claimant's therapies.
IT IS THEREFORE ORDERED that ALJ Henk's order dated November 9, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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. 2001. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 14, 2002 to the following parties:
Willard Michael Wyatt, 14470 E. 13th Ave., #B18, Aurora, CO 80011
Office Depot, Inc., 4600 Havana St., Denver, CO 80239-2925
Dawn Kaup, Lumbermens Mutual Casualty Co., P. O. Box 5347, Denver, CO 80217-5347
Scott Sweeney, Esq., and John M. Connell, Esq., 1675 Larimer St., #710, Denver, CO 80202 (For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy