W.C. Nos. 4-569-163, 4-242-808.Industrial Claim Appeals Office.
February 9, 2006.
FINAL ORDER
Service Corporation International (SCI) seeks review of the orders of Administrative Law Judge Mattoon and Administrative Law Judge Stuber that found the claimant suffered a substantial permanent aggravation of her occupational disease with SCI, and held SCI liable for certain benefits. We affirm.
The claimant worked as a telemarketer for Worldcom from 1993 to January 9, 1995. The claimant developed pain in her arms and neck in October 1994, and underwent elbow surgery in 1995 and 1996. The claimant attained maximum medical improvement (MMI) on January 20, 1997. Worldcom filed a final admission of liability for permanent partial disability benefits and continuing medical benefits. On July 1, 1998, the claimant was discharged from medical treatment with permanent work restrictions.
Thereafter, the claimant suffered occasional flare-ups in her arms and neck as a result of activities. She sought additional treatment from Dr. Johnson in March 2001 due to such a flare-up in symptoms. The treatment helped resolve the flare in symptoms.
The claimant began to work as a family counselor for SCI on July 31, 2001. The claimant explained her permanent work restrictions and SCI was willing to accommodate her restrictions. Using a headset, the claimant made about 20 phone calls per day, or about two hours per week, to set appointments. The claimant would travel to the customers’ homes and make her sales presentation. When she made a sale, she had to complete by hand about seven or eight forms. In October 2001, the claimant’s duties and work days increased. She experienced increased pain in her arms, and reduced her sales work to compensate.
Late in December of 2001, the claimant ate a dinner of “peel
eat” shrimp and pistachios in the shell for dessert. This intense use of her hands caused a great deal of hand pain, but it calmed down.
In early January of 2002, the claimant had a last-minute appointment with three clients who were leaving the country and wanted to make pre-need funeral arrangements on short notice. In preparation for a meeting in the morning, the claimant filled out three sets of contract paperwork the night before. This caused such a great deal of arm pain that she told SCI that she could not do the job anymore.
SCI was motivated to keep the claimant because she was a good salesperson. SCI did everything in its power to accommodate the claimant’s physical restrictions. The claimant worked another three weeks with these accommodations, but the arm pain did not improve at all. In the past, the claimant generally had been able to get the arm pain to calm down by not using her arms for a few days. However, in this instance, the pain did not diminish and in early February of 2002, the claimant quit working completely for SCI.
The claimant was seen and treated in March 2002 by Dr. Ogrodnick. Dr. Ogrodnick felt that the claimant’s condition had remained fairly constant since 1997 and that even minimal use of her arms would cause temporary flare-ups. However, Dr. Ogrodnick agreed that the claimant’s condition required the claimant to stop working for SCI.
The claimant saw Dr. Ridings for an independent medical evaluation, who felt that the claimant did not have any injury either in 1994 or in November of 2001, but if one wanted to assign an etiology, then her last injurious exposure was with SCI in November of 2001. The ALJ found the opinion of Dr. Ridings not persuasive since he does not believe that the claimant has any injury or occupational disease at all.
The claimant underwent an independent medical evaluation by Dr. Fall, who gave the opinion that the claimant continues to suffer from the same chronic bilateral elbow and cervicothoracic myofascial symptoms from her initial workers’ compensation injury in 1994. Dr. Fall stated that there was nothing in the medical records that indicated that the claimant had suffered a substantial aggravation or permanent worsening of the permanent condition while working at SCI.
In an order issued May 20, 2004, ALJ Mattoon found that the claimant’s condition did not require either strenuous or repetitive activity to worsen. Even light usage of the arms could and did cause worsening. Further, ALJ Mattoon found that the claimant, after working for SCI, suffered a much longer and much more intense worsening of her symptoms which did not abate on its own, but required medical care. ALJ Mattoon found that the claimant suffered a substantial permanent aggravation of her occupational disease, while she was injuriously exposed to the hazards of using her arms to work at SCI. ALJ Mattoon also found that SCI was the employer in whose employment the claimant was last injuriously exposed to the hazards of her occupational disease and suffered a substantial permanent aggravation thereof. ALJ Mattoon therefore concluded that SCI was solely liable for the claimant’s occupational disease and ordered SCI to provide reasonable, necessary and related medical benefits. SCI appealed the order, but we dismissed the appeal without prejudice, finding the order to be interlocutory and not subject to review.
The matter was then heard before ALJ Stuber, who entered an order dated September 20, 2005 on the issue of medical benefits and temporary total disability (TTD) benefits. ALJ Stuber found that Judge Mattoon clearly determined that the claimant suffered an occupational disease due to her work for SCI. ALJ Stuber also found SCI liable for TTD benefits, but since the issue of average weekly wage was not tried, no specific order of TTD was issued. However, ALJ Stuber’s order grants and denies specific medical benefits, and is reviewable on that basis.
On review, SCI argues that the ALJs erred in concluding that the claimant suffered a substantial permanent aggravation as a result of her employment with SCI. SCI contends there is simply no evidence suggesting that the claimant’s employment at SCI resulted in a permanent aggravation of any kind, let alone a substantial permanent aggravation. We disagree.
Where compensation is payable for an occupational disease, and the claimant was employed by more then one employer, §8-41-304(1), C.R.S. 2005 assigns responsibility for disability benefits to the employer where the claimant was “last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof.” Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). The “last injurious exposure” test and the “substantial permanent aggravation” test impose separate prerequisites to liability. An injurious exposure occurs when the claimant is exposed to the hazards of the disease in a concentration that would be sufficient to cause the disease in the event of prolonged exposure, without regard to the length of the actual employment. The “substantial permanent aggravation” test mitigates the last injurious exposure rule by focusing on the “effect” of the exposure and requiring that it substantially and permanently aggravate the condition. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). The definition of a “substantial permanent aggravation” is consistent with a layman’s understanding. Maes v. Federal Fruit W.C. 4-246-932 (May 10, 2001).
SCI does not contest the finding that the claimant was last injuriously exposed in its employ. Rather, SCI asserts that the exposure in its employ caused only a temporary flare-up of the disease that resolved back to the claimant’s previous baseline level.
However, the question of whether there has been a substantial permanent aggravation is one of fact for determination by the ALJ. Monfort Inc. v. Rangel, supra. Consequently, we must uphold the ALJ’s resolution of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). To the extent that a medical expert’s testimony contains internal inconsistencies, the ALJ may resolve them by crediting part or none of the testimony. Monfort Inc. v. Rangel, supra. Further, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers to be dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, Dr. Ogrodnick rendered the opinion that the claimant had no permanent worsening of her condition as a result of the flare-up at SCI. However, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The fact that Dr. Ogrodnick’s opinion, if credited, might support a contrary determination, does not afford us grounds on which to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission 624 P.2d 1340 (Colo. App 1981) (expert medical evidence not dispositive).
SCI also relies on the claimant’s testimony that, after acupuncture treatments for the SCI flare-up, her condition returned very close to or better than what it was before her employment with SCI, and that the claimant did not believe the aggravation was permanent. Moreover, SCI points out the claimant’s testimony that she suffered a major flare-up prior to the employment with SCI, that caused the claimant to seek chiropractic care 3-4 times per week, and that the flare-up did not calm down for several weeks during which she stopped doing everything. Arguably, this testimony could be considered to describe conditions comparable to those during the SCI flare-up, when the claimant testified that she suffered pain in her upper extremities that intensified to such a degree that she could no longer hold a log book or write her own name (Tr. 4/2/04 at 13), and had to stop working completely (Tr. 4/2/04 at 75-79).
Nevertheless, substantial, albeit conflicting evidence supports the finding that the claimant suffered a substantial permanent aggravation of her occupational disease at SCI. The claimant testified by February 2002, her arms were so flared up that she literally had them in slings all day every day (Tr. 8/18/05 at 47), and that despite icing, taking medication, and doing literally everything she could to avoid using her arms and alleviate the pain, her condition was not improving. The claimant contrasted these circumstances to previous instances, when her condition would calm down through the use of icing and easing up for a few days.
Similarly, both ALJs found that the flare-up that began in October and November 2001 at SCI, was long-lasting and took months to resolve, unlike previous flares. Further, ALJ Stuber found that after the SCI flare-up, the claimant attempted, but was unable to perform work as a salesperson for another company due to pain in her hands, whereas the pre-SCI flare-ups did not prevent the claimant from working for SCI. The foregoing constitutes substantial evidence from which it could reasonably be inferred that the aggravation suffered in the employment with SCI was both substantial and permanent. Under these circumstances, we perceive no basis on which to interfere with either of the ALJ’s orders.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 19, 2004, and the ALJ’s order dated September 20, 2005, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Thomas Schrant
Colleen Knapp, Colorado Springs, CO, WorldCom, c/o Marcus Panek, MCI, Denver, CO, Gustavo Lopez, Service Corporation International, Risk Management Services, Houston, TX, Rebecca Wheeler, Gallagher Bassett Services, Inc., Englewood, CO, Michael Desaulniers, Esq., Pueblo, CO, (For Claimant).
Gregory K. Chambers, Esq., Denver, CO, (For Respondents Service Corporation International (SCI) and Gallagher Bassett Services, Inc.).
Kristin A. Caruso, Esq., Denver, CO, (For Respondents WorldCom and Gallagher Bassett Services, Inc.).