Opinion
W.C. No. 4-736-727.
September 15, 2009.
FINAL ORDER
The respondent insurer, Liberty Mutual Insurance Co. (Liberty), seeks review of an order of Administrative Law Judge Mottram (ALJ) dated April 30, 2009, that ordered Liberty Mutual Insurance Co. to pay for all the reasonable, necessary and related medical treatment to claimant's right shoulder to cure and relieve her from the effects of the occupational disease. We affirm.
There does not appear to be a factual dispute. The claimant worked on the assembly line for the employer beginning November 2005. The claimant was first examined by Dr. Funk on December 1, 2006 for shoulder discomfort. The claimant eventually underwent right shoulder surgery and reached maximum medical improvement on July 3, 2008. The ALJ found that the claimant had proven by a preponderance of the evidence that she suffered an occupational disease arising out of her employment. The ALJ determined that the onset of disability was November 28, 2008. Liberty insured the employer from January 30, 2006 through December 31, 2006. Pinnacol Assurance (Pinnacol) insured the employer from January 1, 2007 through the end of the claimant's employment on January 31, 2008.
The ALJ was not persuaded by the argument of Liberty that the claimant was last injuriously exposed to the hazards of her employment and suffered a substantial permanent aggravation of her right shoulder condition while Pinnacol insured the employer. The ALJ credited the testimony of the claimant that her job duties were modified after December 2006 in determining that the claimant's continued employment with restrictions did not result in the claimant suffering a substantial permanent aggravation of her right shoulder condition. The ALJ ordered Liberty to pay the claimant temporary disability benefits, permanent partial disability benefits and all of her reasonable, necessary and related medical treatment.
On appeal, Liberty does not contest its liability for temporary or permanent partial disability benefits. However, on appeal Liberty contends that the ALJ erred in determining that it was liable for medical benefits incurred after their coverage of the employer ended on December 31, 2006. Citing Royal Globe Ins. Co. v. Collins, 723 P.2d 731, 733 (Colo. 1986), Liberty argues that liability for medical benefits in an occupational disease case is assigned to the carrier "on the risk at the time medical expenses are incurred." Liberty contends that the holding in Royal Globe requires that Pinnacol be held liable for all medical benefits incurred after December 31, 2006, the last date of Liberty's coverage, because Pinnacol was "on the risk" at the time the medical expenses are incurred. We are not persuaded that the ALJ erred in finding Liberty liable for the medical expenses.
The Colorado Supreme Court held in Royal Globe that the term "compensation," as used in the predecessor to § 8-41-304(1) C.R.S. 2009, only refers to compensation in the form of disability benefits, and does not include medical benefits. Accordingly, the court held that the "last injurious exposure rule" does not determine liability for medical benefits in the case of an occupational disease. Rather, the insurance carrier "on the risk" at the time medical expenses are incurred is liable for the payment of those expenses. Royal Globe Ins. Co., 723 P.2d at 736.
Liberty, citing Stone v. Grand Junction Hilton, W. C. No. 4-315-051 (November 6, 1997), further argues that in the present case the bulk of the medical expenses, such as the surgery, were incurred when the insurer "on the risk" was Pinnacol. Stone, as here, involved one employer with consecutive workers' compensation insurance coverage supplied by two different insurance companies. However, in Stone, unlike here, the claimant suffered an occupational disease and suffered a worsening of his condition caused by a substantial permanent aggravation after the effective date of coverage by the second insurance company. Consequently, the Panel reasoned that the insurer "on the risk" when the claimant incurred the disputed surgical expense was the insurer which insured the employer at the time the expenses were incurred. In Stone, because the claimant suffered a substantial permanent aggravation of his condition during the second period of coverage the panel affirmed the ALJ's decision to impose liability for the surgical expenses on the second insurer. In our view, Stone is distinguishable from the present case because here, in direct contrast to Stone, the ALJ found that the claimant did not suffer a substantial permanent aggravation of her condition during the second period of coverage.
In reaching its decision in Stone, the Panel relied upon previous interpretations of Royal Globe. The Panel has previously determined that the insurer "on the risk" when medical expenses are incurred is the insurer which insured the employer whose conditions caused the need for treatment. See Rigdon v. Doubletree Hotels, W.C. Nos. 4-175-649, et. al, (March 18, 1996). Here of course, there is only one employer and the claimant's occupational disease arose out of that employment. However, the Panel has followed the same analysis in determining liability for medical benefits in the case of an employer with different periods of coverage by insurance companies as it followed where there were two employers insured by two insurers. In the situation of one employer with two insurers, the Panel has determined that an insurer is considered to be "on the risk" for the purposes of medical expenses only if during its period of coverage the conditions of the employment caused, aggravated, or accelerated the claimant's condition so as to cause the need for treatment. In Treto-Madera v. Spendrup Fan Company W. C. Nos. 4-572-533 and 4-423-545 (October 21, 2004) the Panel stated the following:
It was not clear from Royal Globe whether an insurer was considered to be "on the risk" for purposes of medical expenses whenever its period of coverage commenced, or whether an insurer was on the risk only if, during its period of coverage, the conditions of the employment caused, aggravated, or accelerated the claimant's condition so as to cause the need for treatment. Further, it was unclear from the opinion on what authority the court could order an insurer to assume liability for a risk it never insured. In light of these questions we subsequently held, in a series of cases, that an insurer is "on the risk" for purposes of medical benefits only if, under the "ordinary rules of causation" applicable in workers' compensation cases, it is established that during the coverage period the conditions of employment caused, aggravated, or accelerated the need for medical treatment. E.g. Barbour v. SOS Staffing Services, Inc., W.C. No. 4-364-807 (December 29, 1999), affd., Barbour v. Industrial Claim Appeals Office, Colo. App. No. 00CA0086, October 12, 2000 (not selected for publication); Rigdon v. Doubletreee Hotels, supra.
In Treto-Madera, the Panel reversed an order of the ALJ that had ordered the second insurer to pay for medical treatment not caused by any condition of employment which aggravated or accelerated the claimant's condition after the second insurer came on the risk. We are not persuaded to depart from the Panel's reasoning in Treto-Madera.
Here the ALJ made the following findings of fact, which are not contested on appeal. The claimant's job duties on the assembly line of cutting webbing and assembly sewing and the need to reach above her head and pull boxes off a shelf caused her to experience pain. The ALJ credited the claimant and the employer's witness that her job duties were modified after December 2006 to include no overhead work, including taking the claimant off of the web cutting station and the heel riser station. The coverage by Pinnacol began on January 1, 2007. The claimant suffered an occupational disease arising out of her employment on November 28, 2006. The ALJ found that the claimant's continued employment with the employer with restrictions did not result in the claimant suffering a substantial permanent aggravation of her right shoulder condition. The ALJ rejected the argument of Liberty that the claimant was last injuriously exposed to the hazards of her employment and suffered a substantial permanent aggravation of her right shoulder condition during the period of time that Pinnacol insured the employer. The ALJ ordered Liberty to pay for all the reasonable, necessary and related medical treatment to her right shoulder to cure and relieve her from the effects of the occupational disease. In our view, the ALJ's determination is consistent with the result reached by the Panel in Treto-Madera. IT IS THEREFORE ORDERED that the ALJ's order April 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
APRIL GARCIA, Attn: N/K/A APRIL HORN, THORNTON, CO, (Claimant).
CHACO, INC., Attn: DAVID KNUTSON, PAONIA, CO, (Employer).
LIBERTY MUTUAL INSURANCE CO, Attn: MALCOLM CHANDLER, C/O: AND/OR PINNACOL ASSURANCE, ENGLEWOOD, CO, (Insurer).
GREG REMMENGA, PC, Attn: GREG R REMMENGA, ESQ., GRAND JUNCTION, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Other Party).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (Other Party 2).