IN RE ATKINSON, W.C. No

FINAL ORDER

The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ). The respondents contend the ALJ erred in awarding pneumatic tools as a form of medical benefit. They also argue the ALJ should have determined whether the claimant sustained a last injurious exposure and substantial permanent aggravation while working for a subsequent employer. We reverse the award of medical benefits, and remand the matter for a new order on the issue of liability.

The claimant sustained an occupational disease diagnosed as bilateral carpal tunnel syndrome. At the time of the injury the claimant was employed as a roofer.

In May 1997 the claimant's treating physician prescribed a set of pneumatic tools. The physician testified that the purpose of the prescription was to enable the claimant to return to work as a roofer and to prevent further deterioration of his condition. The physician also opined the tools constitute a form of post-operative treatment within the meaning of the Medical Treatment Guidelines for Occupational Carpal Tunnel Syndrome found at Rule of Procedure XVII, Exhibit B (II) (D) (3) at II-13, 7 Code Colo. Reg. 1101-3.

The treating physician placed the claimant at maximum medical improvement in August 1997. Thereafter, the claimant went back to work as a roofer, albeit at substantially reduced hours. In February 1998 the claimant returned to the treating physician complaining of increased pain in both hands and wrists. EMG studies revealed a deterioration of the claimant's condition. The physician restricted the claimant from all work in February, and released him to part-time work in March 1998.

At the hearing, the treating physician testified the claimant's worsened condition was attributable to the formation of scar tissue and constituted a "natural worsening." However, the physician also testified that part of the deterioration was attributable to the fact the claimant returned to work without power tools, and there was a "dual etiology" to his condition. (Tr. pp. 37, 48).

The ALJ credited the testimony of the treating physician and found the pneumatic tools constituted "treatment modalities" within the meaning of the Medical Treatment Guidelines. Therefore the ALJ concluded the respondents must pay for the tools because they "will be used in medical treatment and will have a therapeutic effect upon the Claimant's disabling injury."

The ALJ also credited the treating physician's testimony concerning the issue of causation. Specifically, the ALJ found the claimant's worsened condition "was a natural progression of the disease," but also found that the claimant's part-time work "would not by itself have caused the worsening of condition." Therefore, the ALJ ordered the respondents to pay temporary total disability benefits commencing in February 1998, and temporary partial disability benefits commencing in March 1998.

I.

On review, the respondents first contend the ALJ erred in awarding the pneumatic tools as a form of medical benefit under § 8-42-101(1)(a), C.R.S. 1998. The respondents argue the tools do not constitute "medical apparatus" because they do not afford treatment for the injury or provide therapeutic relief from the symptoms of the injury. The respondents also argue the tools may not be classified as "medical" apparatus simply because they allow the claimant to return to work as a roofer without further deterioration. We agree with the respondents.

In order for an apparatus to be considered "medical" for purposes of the statute it must be necessary to "treat" the injury or provide "therapeutic relief" from the effects of the injury. These terms are narrowly construed, and apparatus prescribed for the purpose of easing some aspect of the claimant's life or to afford greater personal independence and productivity are not "medical" in nature. Bogue v. SDI Corp., Inc., 931 P.2d 477 (Colo.App. 1996); Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). Similarly, an apparatus is not a medical benefit simply because it may assist the claimant in avoiding some future aggravation of his condition. ABC Disposal Services v. Fortier, 809 P.2d 1071 (Colo.App. 1990). Although the question of whether a particular apparatus qualifies as a medical benefit is generally one of fact, the issue becomes one of law if the evidence establishes the device plays no role in treating the claimant's physical or medical condition. Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra; Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993).

Here, we agree with the respondents that as a matter of law the pneumatic tools do not constitute a medical apparatus within the meaning of § 8-42-101(1)(a). The treating physician candidly admitted the purpose for prescribing the tools was to allow the claimant to return to work as a roofer and avoid subsequent aggravations which might result from the use of hand tools. Thus, the purpose of the prescription was not to provide any direct treatment for the claimant's carpal tunnel syndrome, or even relieve symptoms of the condition. Rather, the purpose was to accommodate the claimant's wish to resume his preinjury employment and avoid additional injury which could result from repetitive activity. As stated in Bogue v. SDI Corp., Inc., supra, it may be a "salutary goal" to return the claimant "to the most active and productive lifestyle which his physical and medical limitations" will allow. Nevertheless, such goals "are beyond the intent of § 8-42-101(1)(a)." 931 P.2d at 480; cf. Bernal v. Orlinski, W.C. No. 3-917-688 (February 11, 1993) (medically prescribed "massage table" was not a compensable medical benefit because it was unrelated to treatment and merely provided "an easier method for the claimant to perform the duties of her chosen occupation" as a massage therapist).

We have reviewed the various decisions cited by the claimant in which we upheld awards of "ergonomic chairs." Our review indicates that in each case the record contained evidence from which the ALJ could infer the chairs were therapeutic or tended to relieve the claimant's ongoing symptoms. Therefore, those decisions are factually and legally distinguishable from this case. E.g., Chapman v. Mountain Flyers Aviation, W.C. No. 4-262-405 (August 15, 1996).

Neither are we persuaded by the ALJ's reliance on the carpal tunnel Medical Treatment Guidelines. It is true that the post-operative treatment guidelines for carpal tunnel syndrome state the treating physician may attempt to facilitate the claimant's "return to function" by ordering the adaptation of activities of daily living, by providing joint protection instruction and suggesting worksite modifications. However, the rule itself contemplates that such efforts will be of limited duration, and there is no direct reference to the purchase of equipment designed to return the claimant to employment.

Moreover, to the extent the rule could be construed as authorizing an ALJ to order respondents to provide apparatus for the sole purpose of facilitating the claimant's employability, we agree the rule would be unenforceable. Administrative rules or regulations are not controlling if contrary to or inconsistent with the authorizing statute. City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998). Thus, although the Director of the Division of Workers' Compensation has express statutory authority to adopt medical treatment guidelines, the guidelines may not define "medical treatment" in a manner inconsistent with § 8-42-101(1)(a) and the case law interpreting that provision. We should not be understood as expressing the opinion that Rule XVII, Exhibit B (II) (D) (3) is invalid or unenforceable. We hold only that the ALJ applied the rule in a manner which is not consistent with § 8-42-101(1)(a).

II.

The respondents next contend the ALJ applied an incorrect legal standard in determining whether a "subsequent employer" is liable for disability caused by the claimant's occupational disease. The respondents argue the ALJ should have determined whether the claimant sustained a last injurious exposure and substantial permanent aggravation of his occupational disease after leaving employment with the respondent-employer. See § 8-41-304(1), C.R.S. 1998. Instead, the respondents assert the ALJ improperly focused on the "cause" of the claimant's "worsened condition." Because the ALJ may have misapplied the law, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 1998.

Section 8-41-304(1) places liability for an occupational disease on the employer or insurer "in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof." A last injurious exposure exists if the employment subjected the claimant to a "concentration" of hazards of the disease which would have been sufficient to cause the disease in the event of prolonged exposure. A last injurious exposure may occur in employment even though the employment did not actually contribute to or cause the disease. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). However, the impact of the last injurious exposure rule is ameliorated by the statutory requirement that the last injurious exposure actually result in a "substantial permanent aggravation" of the claimant's condition. Thus, exposure to a "harmful concentration of the hazard" must have the effect of substantially and permanently aggravating the claimant's condition. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Monfort, Inc. v. Rangel, supra.

Here, the ALJ did not expressly address the issue of "last injurious exposure." She found that after the claimant left his job with the respondent-employer there was a "natural progression" of his disease. However, the ALJ also credited the treating physician's opinion that the claimant's subsequent work "would not by itself have caused the worsening of condition." (Finding of Fact 9). The latter finding indicates the ALJ may have believed the claimant's subsequent employments played some role in the claimant's overall condition, and that it was not merely a "natural progression." Such a conclusion would constitute a plausible interpretation of the treating physician's testimony and reports.

To the extent the ALJ found the claimant's subsequent employments affected his overall condition, she must determine if those employments rose to the level of a "last injurious exposure" to the hazards of his disease, and if so, whether the exposure resulted in a substantial permanent aggravation of the disease. The fact the subsequent employments were not the sole initiating "cause" of the worsened condition does not rule out the possibility that one of the employments resulted in a last injurious exposure and substantial permanent aggravation. On remand, the ALJ shall make the necessary findings of fact and conclusions of law to resolve this issue.

We have considered the claimant's argument that the respondents waived the defense of last injurious exposure and substantial permanent aggravation by failing to raise it before the ALJ. However, the respondents' response to the application for hearing listed the issue of "subsequent or intervening injury or aggravation" as one of the "other" issues or affirmative defenses for hearing. Further, both the claimant and the treating physician were questioned without objection concerning facts relevant to the issues of last injurious exposure and substantial permanent aggravation. The issue could not have come as a surprise to the claimant because the treating physician testified he discussed the issue of "liability" and "new injury" with claimant's counsel the day before the hearing. (Tr. p. 48). Consequently, the respondents did not waive the defense. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).

In light of this disposition, we need not consider the respondents' argument that the ALJ failed to determine whether the claimant's worsened condition resulted in additional restrictions.

IT IS THEREFORE ORDERED that the ALJ's order dated September 11, 1998, is reversed insofar as it ordered the respondents to provide pneumatic tools as a form of medical benefit.

IT IS FURTHER ORDERED that the ALJ's order is otherwise set aside and the matter is remanded for entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ David Cain

____________________________________ Bill Whitacre

NOTICE

This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R. S. 1998.

Copies of this decision were mailed August 9, 1999 to the following parties:

David J. Atkinson, 1545 Waurika Circle, Colorado Springs, CO 80918

Campbell Roofing, c/o Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail

Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)

Cynthia M. Pring, Esq., P.O. Box 60219, Colorado Springs, CO 80960-0219 (For Claimant)

Michael Goodman, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701

By: A. Pendroy