Hutchison v. Indus. Claim Appeals Office of Colo., Court of Appeals No. 16CA1375

• Court: Court of Appeals of Colorado
• Citation: 405 P.3d 458
• Docket Number: Court of Appeals No. 16CA1375
• Parties: Richard HUTCHISON, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; Pine Country, Inc., d/b/a Pine Country Truck & Auto; and Pinnacol Assurance, Respondents.
• Decision Date: 01 June 2017

405 P.3d 458

Richard HUTCHISON, Petitioner,
v.
INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; Pine Country, Inc., d/b/a Pine Country Truck & Auto; and Pinnacol Assurance, Respondents.

Court of Appeals No. 16CA1375

Colorado Court of Appeals, Div. II.

Announced June 1, 2017
Rehearing Denied August 3, 2017
Certiorari Dismissed October 12, 2017

Withers Seidman Rice & Mueller, P.C., David B. Mueller, Grand Junction, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Harvey Flewelling, Grant Butterfield, Denver, Colorado, for Respondents Pine Country, Inc. and Pinnacol Assurance

William J. Macdonald, Aurora, Colorado, for Amicus Curiae Workers' Compensation Education Association

Opinion by JUDGE DAILEY

¶ 1 In this workers' compensation action, claimant, Richard Hutchison, challenges an order apportioning his benefits award. An administrative law judge (ALJ) determined that only one-third of claimant's injury was work-related. The Industrial Claim Appeals Office (Panel) affirmed the ALJ's decision. We conclude that claimant's benefits award was properly apportioned and therefore affirm the Panel's decision.

I. Background

¶ 2 Claimant works as a trailer mechanic for Pine Country, Inc. (employer). With the exception of a nine-month period in 1997, claimant has worked for employer since 1990. Claimant explained that his work required that "[y]ou get on your knees, pull the tires off or get on your knees to get underneath the trailer or crawl around on the trailer putting screws in the deck." He estimated that he spends "half the time" on his knees while at work.

¶ 3 In 2012, claimant began experiencing right knee pain. He sought treatment from his personal physician, who referred him to an orthopedic specialist, Dr. Mitch Copeland, for further evaluation. Dr. Copeland diagnosed claimant with moderate to severe osteoarthritis of the right knee.

¶ 4 In August 2012, claimant told Dr. Copeland that he also had pain in his left knee that was "intermittent and worsening" and occurred "without any known injury." Claimant reported that this knee pain "began years ago, [but] worse [ned] in last 2 weeks." Dr. Copeland diagnosed severe osteoarthritis in claimant's left knee, as well.

¶ 5 Dr. Copeland injected Synvisc in both of claimant's knees, but claimant did not experience much pain relief. Dr. Copeland also prescribed unloader braces for claimant's knees.

¶ 6 In October 2014, when his symptoms worsened, claimant reported his knee pain to employer as a work-related occupational disease. Employer contested the claim on relatedness grounds. It bolstered its position with an independent medical examination conducted by Dr. J. Tashof Bernton. Dr. Bernton observed that claimant had "fairly diffuse osteoarthritis in many parts of his body. He is also overweight. These are independent predictors of osteoarthritis in the knee." He opined that claimant's work likely aggravated claimant's arthritic knees, but suggested that claimant's employment was not the cause of his arthritis :

While it is clearly evident to and beyond a reasonable degree of medical probability that, given his independent risk factors for knee osteoarthritis, the patient would have had osteoarthritis of the knees if he were not in his current job, the occupational history repeated lifting and squatting over years is sufficient to meet the standard in the Colorado Workers' Compensation

405 P.3d 461

Treatment Guidelines for aggravation of this condition on a work-related basis.

He clarified that "to and beyond a reasonable degree of medical probability, the patient would have osteoarthritis of the knees whether or not he had his current job duties, although ... those job duties aggravated the osteoarthritis."

¶ 7 Claimant retained an independent physician to examine him. That doctor, Dr. John Hughes, recognized that claimant's "weight, family history and idiopathic knee osteoarthritis are certainly independent risk factors for development of end stage osteoarthritis of the knees in a 55-year-old male." He went on to note that "[a]s a result of this consideration, I cannot state within a reasonable degree of medical probability that knee pain is a direct and proximate result of work-related occupational stresses and strains due to [claimant's] work as a mechanic for approximately 25 years." Nevertheless, Dr. Hughes stated that he did "believe that work tasks have substantially contributed to and worsened [claimant's] bilateral knee osteoarthritis and other conditions. I believe his work is the proximate cause for his need for total knee arthroplasty [replacement] at this point in time."

¶ 8 With conflicting reports, claimant applied for a hearing on the issue of compensability. At the hearing, Dr. Bernton reiterated his opinion that "beyond a reasonable degree of medical probability, the osteoarthritis would be there and the need for treatment with or without the occupational activity." He also testified that claimant's work "was not a necessary precondition" to his knee condition. As he did in his report, Dr. Bernton acknowledged that claimant's work likely aggravated his knee condition, and he apportioned "approximately one-third" of claimant's condition "to the occupational exacerbation."

¶ 9 The ALJ found Dr. Bernton's opinions credible and persuasive. The ALJ found that Dr. Bernton and Dr. Hughes "agree[d] that [c]laimant's bilateral knee pain was not directly and proximately caused by [c]laimant's work, but that the cause is multi-factorial in nature." The ALJ credited Dr. Hughes' and Dr. Bernton's opinions that "independent risk factors" contributed to claimant's knee problems, specifically identifying claimant's "weight, family history and idiopathic knee osteoarthritis." The ALJ was also persuaded that claimant's osteoarthritis"would more likely than not, have developed ... regardless of whether or not claimant had a job or any occupational exposure." The ALJ therefore adopted Dr. Bernton's apportionment recommendation, attributing one-third of the cause of claimant's bilateral knee osteoarthritis to work-related factors, and ordered employer to pay for "33.33 percent of all medical benefits and any compensation awarded in this claim as a result of [c]laimant's work activities."

¶ 10 On review, the Panel held that the ALJ had properly apportioned claimant's benefits, and that the decision apportioning the benefits was supported by substantial evidence in the record. Claimant now appeals.

II. Apportionment Under Section 8-42-104, C.R.S. 2016

¶ 11 Claimant contends that his knee condition arose from repetitive kneeling and crawling necessitated by his work as a trailer mechanic, rather than from a specific incident. He therefore sought coverage for an occupational disease, which is defined as:

"Occupational disease" means a disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.

§ 8-40-201(14), C.R.S. 2016. "An occupational disease is present if employment conditions act upon an employee's pre-existing weakness or hypersensitivity so as to produce a disabling condition which would not have existed absent the employment conditions." Masdin v. Gardner-Denver-Cooper Indus., Inc., 689 P.2d 714, 717 (Colo.App.1984).

405 P.3d 462

Masdin recognized that occupational diseases may have both work-related and non-work-related causes, and that an employer may therefore be liable for only a portion of a claimant's occupational disease. Id. Masdin apportionment was adopted by the supreme court in Anderson v. Brinkhoff, 859 P.2d 819, 825 (Colo.1993) ( "We agree with the court of appeals in Masdin [.]").¹

¶ 12 After Anderson, the legislature amended the apportionment statute to prohibit apportionment in certain circumstances. The current version of the statute—which was in effect when claimant filed his claim for coverage of his knee condition—provides: "An employee's temporary total disability, temporary partial disability, or medical benefits shall not be reduced based on a previous injury." § 8-42-104(3).²

¶ 13 The question we must answer, then, is whether claimant suffered a "previous injury" as that term is used in subsection (3). If so, then the statute would prohibit a reduction or apportionment of his medical benefits award "based on a previous injury." The Panel concluded, however, that claimant had not suffered a previous injury and that section 8-42-104(3)'s prohibition therefore did not apply.

¶ 14 Claimant contends that the Panel erred in applying Anderson apportionment to his claim. He argues that the express terms of section 8-42-104(3) prohibit apportionment here. In addition, he challenges the ALJ's application of Anderson apportionment to his claim, arguing that Anderson is distinguishable and apportionment under it is consequently unavailable. Specifically, he notes that unlike the claimant in Ande...