W.C. No. 4-249-841Industrial Claim Appeals Office.
October 3, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied the claim for temporary disability benefits on the ground that the claimant sustained a “substantial permanent aggravation” in subsequent employment. We affirm.
The ALJ found that for the period of October 1994 through November 14, 1994 the claimant was employed as a baker by respondent Cafe Bagelicious, Inc. (Bagelicious). During this period of time the claimant worked forty-two consecutive days in a job which required frequent bending, lifting and standing. The ALJ determined that this employment caused the claimant to develop a compensable occupational back disease.
However, in December of 1994 the claimant commenced employment at the New York Deli Way (New York Deli) performing duties as a meat slicer, sandwich maker and general cleanup activities. Based on the testimony of Dr. Webb, the ALJ concluded that the New York Deli employment resulted in a “substantial permanent aggravation” of the claimant’s occupational disease, and therefore, denied the claim against Bagelicious and the Colorado Compensation Insurance Authority. In so doing, the ALJ specifically credited that portion of Dr. Webb’s testimony in which he stated that “any kind of work where [the claimant] had to do any kind of continuous motion, lifting, pushing, pulling, that sort of thing, would aggravate his previous injury and probably would help prevent him from healing.” (Webb depo., p. 10). The ALJ also cited the claimant’s testimony that he was still suffering serious back pain at the time of the January 30, 1996 hearing, and was still undergoing treatment.
I.
On review, the claimant first contends that the record lacks substantial evidence to support the ALJ’s determination that there was a “permanent aggravation” of the claimant’s condition within the meaning of § 8-41-304(1), C.R.S. (1996 Cum. Supp.). In support of this argument, the claimant cites portions of Dr. Webb’s deposition testimony in which he stated that the claimant’s symptoms “essentially stayed the same,” and he could not say “whether [the claimant] has any kind of permanent problem because I haven’t seen him in follow-up” since March 1995. (Webb depo., pp. 11, 14).
It is certainly true that § 8-41-304(1) requires that any aggravation of an occupational disease be both “substantial” and “permanent” in order to shift liability from one employer or insurer to a subsequent employer. However, resolution of these issues is factual in nature, and we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
In determining whether there is substantial evidence to support the ALJ’s findings, we must defer to his resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). In particular, it was for the ALJ to assess the probative value of the medical evidence, and to the extent Dr. Webb’s testimony contained internal inconsistencies, the ALJ was free to resolve those inconsistencies and credit only a portion of the testimony Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Furthermore, we have previously held that an ALJ need not wait until maximum medical improvement is reached to determine whether a particular employment has caused a “permanent” aggravation of a claimant’s occupational disease. To the contrary, we have concluded that an ALJ is not “required to predict, with certainty, the outcome of” a claimant’s disease. Rather, the ALJ is “required to make his best judgment, upon the available evidence, concerning whether or not” a particular employment has resulted in a substantial and permanent aggravation. See Thomas-Criswell v. Colorado Community Colleges, W.C. No. 4-016-387, June 8, 1993.
Here, that portion of Dr. Webb’s testimony cited by the ALJ supports the inference that the activities which the claimant was required to perform at the New York Deli caused an actual aggravation of his symptoms. Further, the ALJ could infer that this aggravation was permanent in light of the fact that the claimant had not yet recovered more than one year after he first began working at the New York Deli. It is true that some portions of Dr. Webb’s testimony might support contrary findings and conclusions, but we decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the testimony of Dr. Webb, and the record as a whole.
It follows that we also reject the claimant’s assertion that the respondents failed to carry their burden of proof to establish a substantial permanent aggravation while the claimant was employed by the New York Deli. The question of whether the respondents carried their burden of proof was one of fact for resolution by the ALJ, and he resolved that issue in favor of the respondents. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
II.
The claimant also argues that the respondents waived the issue of substantial permanent aggravation by filing an admission of liability for medical benefits, and by failing to raise the issue at the hearing. Both of these arguments lack merit.
First, admitting liability for medical benefits in an occupational disease case does not constitute a waiver of the argument that a claimant sustained a substantial permanent aggravation while working for a subsequent employer. To the contrary, respondents are liable for those medical benefits which were incurred during the time that they were “on the risk” for the occupational disease. See Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986). Conceding liability for medical benefits does not constitute a surrender of the right to assert that a subsequent employer is liable for the claimant’s compensation
benefits.
Neither did the respondents waive their right to raise the issue of substantial permanent aggravation. Even if the respondents did not explicitly plead this defense, the issue was tried by consent. The transcript of hearing and the deposition of Dr. Webb are replete with questions related to the issue of whether the claimant sustained a substantial permanent aggravation while employed by the New York Deli. In fact, this appears to have been the focus of the questioning of Dr. Webb, and the claimant never objected to these questions. Under these circumstances, there was no waiver. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. (1996 Cum. Supp.).
Copies of this decision were mailed October 3, 1996 to the following parties:
David S. Shedletsky, 2025 S. Paris Way, Aurora, CO 80014
Cafe Bagelicious, Inc., 10161 E. Crestridge Lane, Englewood, CO 80111-6213
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Mitchell Baker, Esq., 255 Clayton St., Denver, CO 80206 (For the Claimant)
By: ____________________________