W.C. Nos. 4-149-753, 4-250-486Industrial Claim Appeals Office.
December 9, 1997
FINAL ORDER
Respondent Atmel Corporation (Atmel), as insured by Wausau Insurance Companies (Wausau) seeks review of a final order of Administrative Law Judge Wheelock (ALJ), insofar as it holds Wausau liable for the claimant’s occupational disease. The claimant seeks review of the ALJ’s order insofar as it limited her award of permanent partial disability benefits under former §8-42-110(3), C.R.S. (See Colo. Sess. Laws 1990, ch. 62 at 494) (reemployment statute). We affirm the ALJ’s order to the extent it holds Wausau liable. We reverse the order insofar as it applies the reemployment statute, and remand for a redetermination of the claimant’s entitlement to permanent partial disability benefits.
The ALJ found that the claimant sustained a compensable occupational disease involving her right upper extremity, and particularly her right shoulder. The ALJ determined that the claimant sustained the “onset of disability” from this disease in January 1991. Therefore, the ALJ determined that the claim is controlled by the law as it existed prior to the 1991 amendments to the Workers’ Compensation Act (Act).
The parties stipulated that, prior to October 1992, Atmel was insured by respondent Wausau. However, as of October 1, 1992, Atmel became insured by respondent Industrial Indemnity Company (Industrial Indemnity).
Concerning the respective liabilities of the two insurers, the ALJ found that the claimant sustained the occupational disease as a result of repetitive neck and upper extremity movements which were required to operate a machine known as the ELA-9. When operating the machine, claimant twisted knobs fifty to seventy times per hour, and she reached to shoulder height forty to fifty times per hour.
The claimant’s upper extremity problems initially began in her right wrist and forearm. By February 1991, the claimant began to experience difficulties with her right shoulder. This fact was documented in a job assessment report dated February 26, 1991, and various medical reports thereafter.
Following a leave in the summer of 1991, the claimant returned to Atmel, but was no longer required to operate the ELA machine. While performing various other jobs, she experienced exacerbation of her upper extremity symptoms in August 1991, July 1992, October 1993, and several occasions thereafter.
Ultimately, the claimant decided to undergo shoulder surgery in the spring of 1995. In a report dated November 2, 1995, the surgeon opined that the claimant sustained an eight percent upper extremity impairment as a result of the injury.
Applying former § 8-41-304(1), C.R.S. (See Colo. Sess. Laws 1990, ch. 62 at 480), the ALJ concluded that the claimant was “last injuriously exposed” to her occupational disease prior to the time Industrial Indemnity came on the risk in October 1992. In support of this determination, the ALJ found that the claimant’s upper extremity problems, including her shoulder difficulties, were clearly established by February 1991. Further, the ALJ found that the claimant had been “transferred away from the ELA machine” prior to the time Industrial Indemnity came on the risk, and that her subsequent duties were substantially less physical. Thus, the ALJ held Wausau liable for all benefits, except those which Industrial Indemnity paid pursuant to a mistaken admission of liability.
With respect to the reemployment statute, the ALJ found that the claimant received regular raises between 1991 and 1995, which were “higher than the average raise for the employer’s production employees in each of those years.” Further, the ALJ credited the testimony of the claimant’s supervisor that the effects of the injury did not influence the amount of the claimant’s raises. The ALJ also found that the claimant was not promoted to the position of “thin films department specialist,” partially because of the effects of the injury. However, the ALJ concluded that the failure to promote did not nullify application of the reemployment statute because, “no evidence was presented by Claimant to show that wage increasing promotions within her department were `usual.'” Thus, the ALJ held that the claimant’s permanent disability benefits must be determined based on the eight percent medical impairment rating.
I.
On review, Wausau contends that the ALJ misapplied the last injurious exposure rule contained in former § 8-41-304(1). Wausau asserts that the ALJ’s order proves that she erroneously based the decision on the concept of “substantial permanent aggravation” found in the current version of § 8-41-304(1), C.R.S. 1997. Thus, Wausau argues that Industrial Indemnity is liable for benefits, including permanent disability benefits, after October 1, 1992. We are not persuaded.
Wausau’s argument notwithstanding, the ALJ clearly differentiated between application of the last injurious exposure test, and the substantial permanent aggravation test. Specifically, the ALJ held that, because the claimant sustained the occupational disease prior to the effective date of the current version of § 8-41-304(1), the “rights of the parties” are governed by the last injurious exposure rule contained in the older version of the statute.
It is true that the order makes reference to the substantial permanent aggravation test. However, the ALJ considered substantial permanent aggravation only after addressing the last injurious exposure test, and merely as an alternative holding in the event that a court should conclude that the “new statute was applicable to this case.” Thus, we find no error in the ALJ’s application of the law.
Wausau also asserts that the ALJ erred in finding that the claimant did not sustain a last injurious exposure after Industrial Indemnity came on the risk. In support of this argument, Wausau relies on evidence that the claimant experienced periodic exacerbations of her shoulder problems after Industrial Indemnity came on the risk in October 1992. Further, Wausau cites evidence that some of the claimant’s duties after October 1992 were “repetitive” in nature. We are not persuaded.
In Royal Globe Insurance Co. v. Collins, 723 P.2d 731
(Colo. 1986), our supreme court held that a “last injurious exposure” exists if the duties of the employment create a work environment which would be “sufficient to cause the disease in the event of continued work in such environment.” There is no requirement that the employment in which a claimant sustains a last injurious exposure actually contribute to the occupational disease. 723 P.2d at 734. Thus, the last injurious exposure test depends on whether the “concentration” of the hazard, not the length of the exposure, would have caused the disease. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Further, the question of whether the claimant has sustained a last injurious exposure is largely one of fact for resolution by the ALJ. Royal Globe Insurance Co. v. Collins, supra. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Wausau’s arguments notwithstanding, the record contains substantial evidence to support the ALJ’s conclusion that the claimant did not sustain a last injurious exposure to her upper extremity disease while Industrial Indemnity was on the risk. As the ALJ noted, the claimant’s shoulder problems were already well established by the time Industrial Indemnity came on the risk in 1992. Further, as the ALJ found, by October 1992 the claimant’s job duties involved substantially less movement of her right upper extremity than was required when she operated the ELA-9 in 1991. The claimant testified to this, as did her supervisor. (Tr. pp. 70-74; Harris depo. pp. 49-54). Moreover, the ALJ’s findings are supported by the physical therapy report of July 20, 1992, in which it is recorded that the claimant has a “much less physical job than in 1990.”
Under these circumstances, there is substantial evidence to support the ALJ’s conclusion that, by October 1992, the claimant’s duties would not have been sufficient to cause the occupational disease if continued over a sufficient length of time. The mere fact that the claimant experienced symptoms of her disease after Industrial Indemnity came on the risk did not compel the ALJ to conclude that the job duties would have been sufficient to cause the disease in the first instance. It is true that some evidence in the record would have supported a contrary conclusion. However, this affords no basis for relief on appeal May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).
II.
The claimant contends that the ALJ erred in her application of the reemployment statute. She argues that the employer’s denial of the promotion proves that Atmel did not grant the “usual wage adjustments” within the meaning of the reemployment statute. Further, the claimant asserts that the ALJ misapplied the burden of proof stating that the claimant failed to present evidence showing that promotions were “usual” within the department. We agree with the claimant.
The reemployment statute constitutes an affirmative defense. Consequently, respondents bare the burden of proof to establish every element of the defense, including that the employer extended to the claimant the “usual” wage adjustments. Monfort, Inc. v. Gonzalez, 855 P.2d 19 (Colo.App. 1993). Moreover, i Demetry v. Foodmark Stores, Inc., W.C. No. 3-977-898 (November 18, 1992), we held that promotional opportunities may constitute “usual wage adjustments” for purposes of the reemployment statute. We stated that, “to the extent that wage increasing promotions are usual” and within the employer’s control, the reemployment statute requires the employer to show that promotional opportunities are extended to the claimant in the same manner as other similarly positioned employees, and without regard to the consequences of the claimant’s injury.
In Demetry, there was evidence that the physical limitations caused by the injury disqualified the claimant from receiving promotions to higher paying management positions. The respondents presented no evidence to show that “wage increasing promotions to other departments were not `usual’ for the claimant’s position.” In those circumstances, we determined that the respondents failed to carry their burden of proof to show that the employer extended the “usual wage adjustments” under §8-42-110(3).
We perceive no meaningful distinction between the facts i Demetry and those present here. The ALJ found, as a matter of fact, that the claimant was denied a promotion partially because of the effects of her industrial injury. However, the respondents presented no evidence that such promotions fell outside the range of “usual” opportunities for employees similarly situated to the claimant.
The ALJ’s conclusion notwithstanding, claimant was not required to prove that the promotional opportunity was “usual” for workers in her position. Rather, the employer was required to establish that the lost opportunity for promotion fell outside the usual range of salary enhancing opportunities for a person in the claimant’s position. In this case, the respondents failed to carry their burden of proof. Consequently, the matter must be remanded to the ALJ for a redetermination of the claimant’s entitlement to permanent partial disability benefits.
In light of this disposition, we need not consider the claimant’s other arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 11, 1997, is affirmed insofar as it holds Wausau liable for the claimant’s benefits.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as it restricted the claimant’s permanent partial disability benefits pursuant to the reemployment statute. The matter is remanded to the ALJ for entry of a new order concerning the claimant’s entitlement to permanent partial disability benefits.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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. 1997.
Copies of this decision were mailed December 9, 1997 to the following parties:
Karen D. Hester, 4835 Hunters Run, Colorado Springs, CO 80911
Atmel Corporation, 1150 E. Cheyenne Mtn. Blvd., Colorado Springs, CO 80906-4508
Dana Spohn, Industrial Indemnity, 1471 Shoreline Dr., #200, Boise, ID 83702
A. Phillip, Wausau Insurance Co., P.O. Box 419157, Kansas City, MO 64141
George Fairbanks, Wausau Ins. Co., 9457 S. University Blvd., #313, Highlands Ranch, CO 80126
William Sterck, Esq., 679 Grant St., Denver, CO 80203 (For Wausau Respondents)
William Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Gregory B. Cairns, Esq. and Cynthia E. Wellbrock, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Industrial Indemnity Respondents)
By: _______________________________