W.C. No. 4-613-913.Industrial Claim Appeals Office.
April 13, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded workers’ compensation benefits in the form of medical monitoring. The respondents argue the ALJ erroneously found a compensable occupational disease. We agree and, therefore, set aside the award.
During the claimant’s 29 year employment history with the respondent-employer, she was exposed to cadmium, which is a known cause of renal damage. The claimant alleged that the cadmium exposure caused pulmonary problems, finger “tumors” and abnormal renal function.
Blood and urine testing performed during the claimant’s employment revealed elevated levels of cadmium in the claimant’s system since 1992. In March 2003 the claimant was laid off but the cadmium levels did not dissipate. Continued monitoring of the claimant’s cadmium levels has been recommended.
The ALJ found the claimant sustained a work-related injury consisting of elevated levels of cadmium in her system. The ALJ also found that medical monitoring of the cadmium levels is medically necessary. Therefore, the ALJ ordered the respondents to provide medical monitoring and testing of the elevated cadmium levels.
On review the respondents contend the ALJ erroneously found the facts of this claim to be legally distinguishable from the circumstances in City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (Colo.App. 1976) and Zapata v. Integrated Health Services, Inc., W.C. No. 4-554-986 (October 10, 2003). We agree.
Sections 8-41-301(1) and (1)(c), C.R.S. 2004, provide a right to compensation “for any personal injury” that is “proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment.” Where an “injury” is traceable to a particular time, place and cause the claimant has sustained an “industrial accident.” Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (the term “injury” encompasses both accidental injuries and occupational diseases). In contrast, where an “injury” is acquired in the ordinary course of employment and is a natural incident of the employment, the claimant has sustained an “occupational disease.” Section 8-40-201(14), C.R.S. 2004 Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991) Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993).
Disability is not a prerequisite to an award of medical benefits for an occupational disease, see Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999), and compensable medical benefits may include treatment to “monitor” the disease. See Atwood v. Western Slope Industries,
W.C. No. 3-069-135 (November 28, 1994). Nevertheless, in City of Littleton v. Schum, supra, the court held that a harmful industrial exposure must result in a “disease” before medical benefits may be recovered. Therefore, the Schum court denied compensation for precautionary gamma globulin injections to a fireman who was exposed to hepatitis but had not yet contracted any disease from the exposure. In reaching this result, the court concluded the Workers’ Compensation Act is not designed to provide compensation for preventative measures.
We applied Schum in Griffith v. Rockwell International,
W.C. No. 4-157-178 (July 24, 1994), where the claimant was diagnosed with “sensitization to beryllium,” and the treating physician recommended monitoring of the claimant’s condition to determine “whether the patient develops the disease.” Because the claimant had not yet been diagnosed with beryllium disease, and had not established any disability stemming from his condition, we concluded the claimant failed to establish a compensable injury for purposes of obtaining workers’ compensation benefits in the form of medical monitoring.
Conversely, in Bonazzo v. J.A. Jones, W.C. No. 240-121 (September 24, 1998), we concluded it was error to deny medical monitoring benefits where the ALJ found the claimant had chronic beryllium disease and medical monitoring was recommended to determine when the potential benefits of a specific form of treatment outweighed the risks of the treatment.
In this case, the ALJ determined Schum was legally distinguishable because the claimant suffered “an actual injury of elevated cadmium in her system.” However, the ALJ made no findings of a causal connection between either the finger “tumors” or pulmonary problems and the cadmium exposure. In addition the ALJ found that testing revealed abnormal kidney function in September 2002 but not in February 2003. Further, the ALJ credited test results which revealed abnormal liver enzyme function in June 2004. However, the ALJ did not find the liver enzyme levels were the result of elevated cadmium levels or that the liver testing revealed any specific disease or medical infirmity. Because we read Schum to mean that the term “injury” requires more than mere exposure to potentially harmful substances, we conclude the ALJ’s findings do not support her determination the claimant sustained a compensable “injury.”
We also disagree with the ALJ’s finding that this claim is distinguishable from Zapata v. Integrated Health Services Inc., supra, where the claimant alleged that treatment for his nonindustrial hepatitis was delayed by the employer’s mishandling of his group health insurance. The claimant then alleged the delayed treatment constituted a compensable “injury.” We upheld an ALJ’s determination that the respondents’ actions did not cause any aggravation or acceleration of the claimant’s preexisting liver condition, and thus, there was no “injury.”
Here, the ALJ found Zapata to be distinguishable because the “harm to Claimant is clearly physical, and clearly related to the work she performed for Respondent/Employer.” However, the physical “harm” has not yet caused a definable “disease.” Put another way the ALJ could and did find the claimant suffered an industrial “accident” from cadmium exposure but the ALJ did not find the accident has resulted in an “injury.” See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967) (“accident” is the cause and an “injury” is the result).
Moreover, the ALJ did not find the cadmium exposure aggravated or accelerated any pre-existing disease. Nor can we say the record compels a finding the cadmium has caused or aggravated any specific disease. Consequently, the facts are effectively indistinguishable from Zapata and the ALJ erroneously found the claimant established a compensable injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 2004, is reversed and the claim is denied and dismissed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Norma VanBuskirk, Fountain, CO, Eagle Picher, S. Hancock Expressway, Colorado Springs, CO, Darleen Cook, Liberty Mutual Insurance Company, Irving, TX, Joan A. Goldsmith, Esq., Colorado Springs, CO, (For Claimant).
Scott M. Busser, Esq., Denver, CO, (For Respondents).