4-606-010 (2005). GALE (Final Order).

Case Date:June 16, 2005
Colorado Workers Compensation 2005. 4-606-010 (2005). GALE (Final Order) INDUSTRIAL CLAIM APPEALS OFFICEW. C. No. 4-606-010IN THE MATTER OF THE CLAIM OF ELLEN E. GALE, Claimant, v. UNITED PARCEL SEREVICE, Employer, and LIBERTY MUTUAL INSURANCE CO., Insurer, Respondents.FINAL ORDER The claimant and the respondents seek review of a Corrected Order of Administrative Law Judge Friend (ALJ) which determined the claimant sustained a compensable occupational disease and denied certain medical benefits. The respondents contend the ALJ erred in finding the claimant's foot condition was caused by a hazard peculiar to her employment and in declining to apportion liability for temporary disability and medical benefits. The claimant contends the ALJ erred in finding that a foot surgery was not performed by an authorized physician. We affirm. The ALJ found the claimant was employed as a delivery driver. Because the claimant was right foot dominant, she would step out of her truck with the right foot. The step was sixteen inches above ground level. During the holiday season in November and December, the number of deliveries substantially increase, causing the claimant to leave the vehicle more often. The ALJ found that the claimant had congenital foot problems which included high arches and "flexible hammer toes" on both feet. The claimant also had Morton's toe, or a long second toe of the right foot. The claimant testified that she had a history of foot pain dating back five years, but experienced particularly noticeable pain under her right second toe following the 2002 holiday season. The claimant first sought treatment for this condition in June 2003 and was provided with orthotics. In the December 2003 holiday season the claimant again experienced severe pain and sought treatment from the employer's designated physicians at Arbor Occupational Medicine (Arbor). The Arbor physician, Dr. Mars, referred the claimant to Dr. Lundy, a foot surgeon who diagnosed a hammertoe deformity of the right second toe and recommended surgery. Dr. Mars reduced the claimant's hours in December 2003, and took her completely off work on February 13, 2004. The claimant alleged she sustained a compensable occupational disease of the right foot caused by stepping down from the truck, and she sought temporary partial and temporary total disability benefits as well as compensation for surgical repair of the hammertoe. Crediting the testimony of the claimant's medical expert, Dr. Hughes, the ALJ found the claimant sustained a compensable occupational disease comprised of a "fixation over the right second hammertoe." The ALJ determined that the occupational disease was caused by stepping down from the truck, an activity which aggravated the claimant's pre-existing foot condition so as to cause the claimant's temporary disability and accelerate the need for treatment in the form of surgery. However, the ALJ denied the claimant's request that the respondents be ordered to pay for the...

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