Claim Appeals Office of the State of Colorado WC No.
Withers Seidman Rice & Mueller, P.C., David B. Mueller,
Grand Junction, Colorado, for Petitioner.
Appearance for Respondent Industrial Claim Appeals Office.
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.
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
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
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 Treatment Guidelines for
aggravation of this condition on a work-related basis.
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
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
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.
Apportionment Under Section ...