W.C. Nos. 4-393-312; 4-337-050; 4-373-386; 4-406-896; 4-406-987Industrial Claim Appeals Office.
October 2, 2000
ORDER OF REMAND
Nicholson Trucking Inc. (Nicholson) and its insurer, Protective Insurance Company, (collectively the respondents) seek review of an order of Administrative Law Judge Henk (ALJ) which held them responsible for temporary disability and medical benefits due on account of an occupational disease. We set aside the order and remand for entry of a new order.
The claimant worked for Nicholson driving trucks and hooking up trailers. The claimant testified that the equipment she drove for Nicholson was old, had alignment problems and was difficult to handle. She testified that in early September 1997 she began to experience pain and numbness in her left hand. On September 11, 1997, the claimant terminated her employment for Nicholson. From September 15, 1997 to February 1998, the claimant drove trucks for Joe Pence Trucking a/k/a JWP Inc. (Pence). The claimant’s symptoms worsened. On October 31, 1997 the claimant sought treatment from Dr. Kuper who diagnosed bilateral cumulative trauma injury to the upper extremities. In March 1998 the claimant worked 2 days driving trucks for Mollerway Freight Lines (Mollerway). Between March 30 and May 28, 1998 the claimant was employed by Papa Johns USA delivering pizzas and folding boxes. The claimant worked at the Washington Park Veterinary Clinic from June 8 until July 3, 1998, when she was physically unable to continue due to upper extremity pain and weakness.
The ALJ determined the claimant suffered a compensable occupational disease affecting her upper extremities from the continuous vibration and repetitive activities required of her employment for Nicholson. Relying on the testimony of the claimant and Dr. Kuper, the ALJ found the onset of disability from the injury occurred between September 2 and September 11, 1997, when the claimant was physically incapable of continuing the Nicholson employment except in a restricted capacity. The ALJ further determined that the claimant’s subsequent employment temporarily aggravated the underlying injury but did not result in any substantial, permanent aggravation. Therefore, the ALJ held the respondents solely liable for temporary total disability and medical benefits commencing July 4, 1998.
On review, the respondents contend, inter alia, that there is not substantial evidence to support the ALJ’s finding the claimant suffered the onset of disability while employed at Nicholson. The respondents contend the ALJ erroneously credited Dr. Kuper’s opinion that the injury was caused by the Nicholson employment. The respondents argue that Dr. Kuper only attributed the claimant’s injury to the Nicholson employment because he was unaware of the claimant’s employment with Pence. We conclude the ALJ’s findings are internally inconsistent and not supported by the record. Therefore, we remand the matter to the ALJ for additional findings and the entry of a new order. Section 8-43-301(8), C.R.S. 2000.
In Finding of Fact 2 the ALJ found the claimant worked for Nicholson from January 1997 to September 11, 1998. However, in Findings of Fact 7 and 8 the ALJ determined the claimant left the Nicholson employment September 11, 1997, and took a job with Pence. Thus, the ALJ’s findings are internally inconsistent.
Furthermore, in Finding of Fact 20, the ALJ expressly credited Dr. Kuper’s medical report dated August 14, 1998, where Dr. Kuper opined that the claimant’s injury is related to the Nicholson employment where the claimant worked for “1 ½ years.” (Finding of Fact 20). Consequently, the ALJ determined “the totality of evidence directs the conclusion that the onset [of disability] was early September 1997 while the claimant was still employed at Nicholson Trucking, Inc. and had been so employed for a year and a half.” (Discussion and Conclusions of Law, p. 4).
The parties stipulated in writing that the claimant worked for Nicholson from January 1997 to September 11, 1997. Consequently, insofar as the ALJ found the claimant worked for Nicholson for 1 ½ years or until September 1998, she erred.
More importantly, we cannot say the ALJ’s factual error is harmless. The record contains evidence Dr. Kuper believed the claimant worked for Nicholson for 1 ½ years before the onset of disability. (Kuper depo. May 11, 1999, p. 12). As argued by the respondents, there is also substantial evidence that Dr. Kuper was unaware the claimant went to work for Pence the same month she left the Nicholson employment. In fact, Dr. Kuper’s deposition suggests he was unaware the claimant drove for any employer other than Nicholson and Mollerway. (Kuper depo. May 11, 1999, pp. 12, 25, 30; Kuper depo. January 5, 1999, pp. 4, 5). Under these circumstances, we are unable to ascertain how the ALJ would have assessed Dr. Kuper’s opinions concerning the cause of the claimant’s injury had the ALJ recognized Dr. Kuper’s mistaken assumption that the claimant had worked for Nicholson 1 ½ years as of October 1997, and the evidence that Dr. Kuper was unaware of the claimant’s truck driving for Pence. Therefore, we remand the matter for additional findings.
On remand the ALJ shall reconsider the evidence and issue a new order concerning the cause of the claimant’s occupational disease and the date of the “onset of disability.” Based upon that determination the ALJ shall enter a new order concerning liability for the claimant’s workers’ compensation benefits.
In remanding the matter we should not be understood to express any opinion concerning the credibility or probative weight of the evidence. Those are matters with the sole prerogative of the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182
In view of our disposition, it is premature to consider the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 30, 1999, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Copies of this decision were mailed October 2, 2000 to the following parties:
Nina Quist, 833 Eudora Street, Aurora, CO 80220
Joe Pence Trucking a/k/a JWP, Inc., 14425 Timberedge Lane, Colorado Springs, CO 80921
Theresa Nicholson, Nicholson Trucking Inc., 201 So. 115th Ave. Dr., Brighton, CO 80601
Mollerway Freight Lines, PO Box 37100, Billings, MT 59107
Papa Johns USA, 621 N. Union Blvd, Colorado Springs CO 80909
Washington Park Veterinary Clinic, 222 S. Albion St., Suite 301, Denver CO 80222
Kemper Insurance Company, c/o White Steele, P.C., 950 17th St., 21st Floor, Denver CO 80202
Pauline Miller, Protective Insurance Company, 1099 N. Meridian Street, Indianapolis, IN 46204
Business Insurance Company, c/o Kent Yarborough, 5353 W. Dartmouth Ave., Ste 400, Denver, CO 80227
Wausau Insurance Company, Kansas City Claims Office, PO Box 419157, Kansas City, MO 64141
George Fairbanks, Wausau Insurance Company, 9457 S. University Blvd., #313, Highlands Ranch CO 80126
Atlantic Mutual Insurance, c/o Thomas McBride, 1410 Grant St., Ste C206, Denver CO 80203
Kent Yarborough, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste 400, Lakewood CO 80227
Thomas McBride, Esq., 1410 Grant St., Ste C, Space 206, Denver CO 80203
Donald Peterson, Esq., 4242 East Amherst Ave., Denver CO 80222
Marlin W. Burke, Mile High Center, 1700 Broadway, Suite 1800, Denver CO 80290 (For Claimant)
Harry King, Esq., 425 S. Cherry, #120, Denver CO 80246
J. Barton Maxwell, Esq., 950 17th Street 21st Floor, Denver CO 80202
BY: A. Pendroy