Opinion
W.C. No. 4-539-081.
January 22, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) insofar as it denied a claim for medical benefits and temporary total disability (TTD) benefits. Respondents Exabyte Corporation and Argonaut Insurance Company (Argonaut respondents) seek review of the order insofar as it determined that the claimant sustained a last injurious exposure and substantial permanent aggravation of the occupational disease during Argonaut's coverage period. We affirm the denial of medical and TTD benefits and dismiss without prejudice the Argonaut respondents' petition to review.
The ALJ's findings may be summarized as follows. The employer, Exabyte, was insured by Argonaut from October 1, 2000, to October 1, 2001. Thereafter, Exabyte was insured by respondent Pinnacol.
The claimant was employed in the respondents' warehouse where she was required to lift parts weighing from several ounces to forty-five pounds. Prior to October 2001, the claimant would place the parts on a "metro cart" and push the cart to an assembly area approximately 200 yards away. Loaded carts could weigh up to 800 pounds. From June through August 2001 the employer reduced the work force and claimant was required to perform many extra activities. After October 1, 2001, the claimant's duties changed somewhat and she was required to pick up and deliver packages by driving an electric golf cart. The claimant described this work as less demanding than the previous job.
The claimant experienced a sharp increase in preexisting back pain beginning in June 2001. By September 2001, she did not feel she was able to continue working on the metro carts. She was examined by Dr. Wittenberg who diagnosed degenerative disc disease (DDD) with a significant disc herniation at L3-4. Dr. Wittenberg recommended surgical repair of the disc, and surgery was performed on January 9, 2002.
Significantly, the claimant did not advise Exabyte that she considered her back problem to be work-related until she filed a claim for benefits in May 2002. The claimant explained that she was unaware of the causal relationship between her work and back problems until she discussed this issue with Dr. Wittenberg after the surgery.
The matter proceeded to hearing on January 24, 2003. The ALJ found the claimant sustained a compensable occupational disease with an onset date of September 1, 2001, when the claimant could no longer push the metro carts. Argonaut and Pinnacol litigated whether the claimant sustained a last injurious exposure and substantial permanent aggravation of the disease after October 1, 2001, when Pinnacol was on the risk. Section 8-41-304(1), C.R.S. 2003 (concerning liability for occupational diseases in the case of multiple insurers). Crediting the opinion of Dr. Hughes, the ALJ found the claimant's symptoms significantly worsened commencing in June 2001, and that the need for surgery occurred before Pinnacol came on the risk. The ALJ further credited the claimant's testimony that the job she held before October 1, 2001, was more physically demanding than the delivery job. Consequently, the ALJ concluded the claimant did not sustain a substantial permanent aggravation of the disease while Pinnacol was on the risk, and the Argonaut respondents are "liable for payment of claimant's compensation."
Concerning the issue of medical benefits, the ALJ found that Pinnacol, as the insurer which was "on the risk" in May 2002 is liable for medical benefits which the claimant incurred after May 2, 2002, but not before that date. In support of the denial of medical benefits the ALJ found the claimant did not notify Exabyte of the potential claim for benefits until May 2, thereby depriving Exabyte of the right to select the authorized treating physician. Hence, medical treatment obtained before May 2 was found to be unauthorized.
Finally, the ALJ denied the claim for TTD benefits commencing May 2, 2002 (claimant waived any claim for TTD before May 2). The ALJ found there was no evidence that any of the claimant's treating physicians imposed restrictions on the claimant which would have precluded her from returning to her regular employment. Further, the ALJ found there was no other persuasive evidence that the claimant was prevented from returning to her pre-injury employment.
I.
On review, the claimant first contends the ALJ erred in denying the claim for payment of medical expenses which the claimant incurred prior to filing the claim and notifying Exabyte that she considered her condition to be work-related. The claimant argues it is "unfair" to place the burden of medical coverage on her when she did not recognize the causal relationship between the employment and the need for treatment. We are not persuaded.
The employer has the right in the first instance to select the authorized treating physician for the injury. Section 8-43-404(5)(a), C.R.S. 2003. The right, and hence the obligation, to select the treating physician arises "forthwith" when the employer receives information which would lead a reasonable manager to recognize that the employee may have sustained an injury which could lead to a claim for benefits. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984); Grove v. Denver Oxford Club, W.C. No. 4-293-338 (November 14, 1997). Further, the respondents, who may be required to pay for treatment, have a right to know what is being done and by whom. Hence, if the claimant obtains unauthorized treatment, the respondents are no liable to pay for it. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999).
In light of these principles, we have previously held that a claimant who procures treatment from an unauthorized physician before notifying the employer of the alleged industrial injury or occupational disease is not entitled to receive compensation for such treatment. To hold otherwise would deprive the respondents of their right to designate the treating physician and to be informed of what treatment is being provided. See Lopez v. Stresscon Corp., W.C. No. 4-198-942 (October 10, 1995); Jabulin v. Cryenco Energy, Inc., W.C. No. 3-915-167 (September 21, 1990), aff'd., Jabulin v. Cryenco Energy, Inc., (Colo.App. No. 90CA1736, August 22, 1991) (not selected for publication). Although there may be an element of unfairness in situations where the claimant fails to recognize the potential claim before receiving treatment, the statute allocates that risk to the claimant. It follows that the ALJ correctly denied the claim for medical expenses incurred before May 2, 2002.
II.
The claimant next contends the ALJ erred in denying the claim for TTD benefits. The claimant asserts evidence showing the claimant was prescribed narcotic pain relievers after the surgery and experienced ongoing symptoms required the ALJ to find that she was disabled. We are not persuaded.
In order to receive TTD benefits the claimant must prove the injury caused disability. Section 8-42-103(1), C.R.S. 2003. As the ALJ correctly stated, the term disability incorporates two elements. The first element is "medical incapacity" evidenced by loss of bodily function. The second element is impairment of wage earning capacity demonstrated by the claimant's complete or partial inability to perform the pre-injury employment. See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999).
The question of whether the claimant has proven disability is one of fact for determination by the ALJ. Although disability need not be proven by medical evidence, the ALJ is free to consider the presence or absence of medical evidence, and the credibility of medical evidence in determining whether the claimant has met the burden of proof. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. 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. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant's arguments notwithstanding, the ALJ was not compelled to find the claimant proved disability commencing in May 2002. As the ALJ found, there is no medical evidence that any of the treating physicians imposed any restrictions which would have precluded the claimant from returning to the pre-injury employment, and the claimant admitted as much. Moreover, the ALJ was unpersuaded by other evidence which might have supported an inference of disability, such as the evidence that the claimant was prescribed ongoing medication. Further, as the Pinnacol respondents point out, there is evidence that the claimant engaged in "rock-climbing" in July 2002. (Notes of Dr. Anderson dated July 24, 2002). In light of these circumstances the ALJ properly concluded that the claimant's unemployment was economic because she failed to prove that the injury caused any competitive disadvantage after the claimant was laid off. Cf. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).
III.
The Argonaut respondents seek review of the order insofar as it determined the claimant did not sustain a substantial permanent aggravation of the occupational disease while Pinnacol was on the risk. The Argonaut respondents also assert they were denied due process because they were not permitted to file a position statement after the hearing. We dismiss this petition to review without prejudice.
We may only review orders insofar as they award or deny benefits or penalties. Section 8-43-301(2), C.R.S. 2003; Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003). Orders which determine liability without awarding specific benefits are interlocutory and no subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Orders may be final and reviewable with respect to some issues and interlocutory with respect to other issues. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
Although the ALJ's order determined the claimant did not sustain a substantial permanent aggravation of the occupational disease while Pinnacol was on the risk, and consequently determined the Argonaut respondents are "liable" for the claimant's compensation, the order does not require the Argonaut respondents to pay any benefits. In fact, only Pinnacol was ordered to pay medical benefits. Thus, the Argonaut respondents' petition to review must be dismissed without prejudice insofar as it seeks review of the determination that the claimant did not sustain a substantial permanent aggravation while Pinnacol was on the risk. Similarly, the order is not final and reviewable concerning the alleged due process violation.
IT IS THEREFORE ORDERED that the ALJ's order dated February 27, 2003, is affirmed insofar as it denied the claimant's request for TTD benefits and medical benefits.
IT IS FURTHER ORDERED that the Argonaut respondents' petition to review is dismissed without prejudice.
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on January 22, 2004 by A. Hurtado.
Dawn Zapiecki, 200 Baseline Rd., #5A, Lafayette, CO 80026
Exabyte Corporation, 1685 38th St., Boulder, CO 80301
Legal Department, Pinnacol Assurance — Interagency Mail
Ginger Cook, Argonaut Insurance, 5690 DTC Blvd., #290 West, Englewood, CO 80111
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For Claimant)
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., 1625 Broadway, #2300,
Denver, CO 80202 (For Respondents Exabyte Corporation and Pinnacol Assurance)
Gregory Daniels, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents Exabyte Corporation and Argonaut Insurance)