W.C. Nos. 4-272-181, 4-273-097Industrial Claim Appeals Office.
December 24, 1996
FINAL ORDER
Interim Personnel and its insurer, the Insurance Company of the State of Pennsylvania (collectively the Interim respondents) seek review of an order of Administrative Law Judge Wheelock (ALJ) dated May 6, 1996, as modified on June 17, 1996. We affirm the ALJ’s determination that the claimant sustained an occupational disease to her upper extremities, and the order requiring the Interim respondents to pay temporary disability benefits for the period October 16, 1995 to October 31, 1995. We set aside the ALJ’s order insofar as it requires the Interim respondents to pay temporary disability benefits after October 31, 1995, and remand for a new order on this issue. Further, we dismiss without prejudice the Interim respondents’ request for review of the ALJ’s order on the issues of medical benefits and permanent partial disability.
The ALJ found that the claimant was working for Deluxe Current Inc. (Current) as a full-time key punch operator in October 1995, when she began a second full-time job at Trend Plastics (Trend) on assignment by Interim Personnel. Shortly after the claimant started performing assembly work at Trend, she developed pain in her hands and fingers, which she reported to Trend and Current. The ALJ found that Trend referred the claimant to Dr. Rodriguez for treatment and that Dr. Rodriguez determined the claimant to be at maximum medical improvement (MMI) with no permanent impairment as of November 1, 1995. Current referred the claimant to Dr. Kendall, and arranged for an independent medical examination by Dr. Finn.
The ALJ further found that the onset of the claimant’s symptoms from the occupational disease was “caused” by the claimant’s employment at Trend. Crediting the testimony of Dr. Kendall and Dr. Finn, the ALJ found that the claimant sustained a “substantial permanent aggravation” of the occupational disease while employed at Trend. Consequently, the ALJ determined that the Interim respondents are solely liable for the claimant’s occupational disease. Therefore, the ALJ denied and dismissed the claim against Current and its insurer, the Travelers Insurance Company (collectively the Travelers respondents).
The claimant’s last day of work at Current was October 11, 1995 and her last day of work at Trend was October 15, 1995. The claimant then remained unemployed until December 18, 1995. Based upon these facts the ALJ ordered the Interim respondents to pay temporary total disability benefits from October 16, 1995 through December 17, 1995 and temporary partial disability benefits commencing December 18, 1995.
The Interim respondents filed a “Motion for Reconsideration.” The ALJ then issued her order of June 17, 1996, which amended the prior order to add a determination of the claimant’s temporary total disability rate. The ALJ also directed the Interim respondents to refer the claimant for medical treatment in San Diego.
I.
On review the Interim respondents first contend that the ALJ misapplied § 8-41-304(1), C.R.S. (1996 Cum. Supp.), in finding that the claimant suffered a “substantial permanent aggravation” of her occupational disease while working at Trend. Alternatively the Interim respondents contend that the evidence is insufficient to support such a finding.
The claimant contends that section 8-41-304(1) is not applicable to the facts of these claims as determined by the ALJ. Therefore, the claimant argues that the ALJ’s error, if any, in finding that the claimant suffered a substantial permanent aggravation of her condition at Trend is harmless. We agree with the claimant.
Section 8-41-304(1) provides that:
“Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier.”
The purpose of § 8-41-304(1), and its predecessors is to provide a method for assigning liability in occupational disease claims where the claimant is exposed to the hazards of the disease in multiple employments, or where there are multiple insurers on the risk during the period of injurious exposure Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Holmes v. Colorado State Department of Highways, W.C. No. 4-196-538, March 13, 1995; Otero v. Department of Labor and Employment, W.C. No. 3-994-052, May 16, 1994. Accordingly, § 8-41-304(1) does not govern the determination of liability for an occupational disease which is the result of a hazardous exposure during one employment with one insurer.
The ALJ found that the “record does not establish that the claimant suffered any injurious exposure with Current.” Thus, the ALJ determined that the Current employment did not expose the claimant to any hazards which would have been sufficient to cause her disease if continued over a sufficient length of time See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In reaching this determination, the ALJ relied upon the claimant’s testimony that she worked “symptom-free” at Current for one and one-half years before she began a second job at Trend, and that she did not develop pain in her hands and fingers until after she started to work at Trend. The ALJ also cited Dr. Rodriguez’s testimony that the claimant’s problems were due to an “over-exertion syndrome which developed after four days at her new job.” Further, the ALJ was persuaded by the opinions of Dr. Kendall and Dr. Finn who attributed the claimant’s upper extremity injury to her work at Trend, and the ALJ explicitly noted Dr. Finn’s reference to the claimant’s report of right upper extremity pain which began several days after she started a second job in October 1995.
The evidence which the ALJ relied upon constitutes substantial support for an inference that the claimant’s occupational disease is not related to her work at Current, and therefore, that she did not encounter any hazards of her disease at Current. Consequently, we must uphold the ALJ’s determination that it was the claimant’s injurious exposure at Trend which was the sole cause of her occupational disease. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ findings may be inferences from circumstantial evidence)
Moreover, the ALJ’s findings reflect her determination that the claimant did not suffer an injurious exposure to the hazards of her occupational disease during more than one employment or employment involving more than one insurer on the risk at the time of the injurious exposure. It follows that § 8-41-304(1) does not control the Interim respondents’ liability for the claimant’s injury. Thus, to the extent that the ALJ misconstrued § 8-41-304(1) in finding that the claimant’s occupational disease was substantially and permanently aggravated during her employment at Trend, the error is harmless, and will be disregarded. Section 8-43-310 C.R.S. (1996 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
II.
Next, the Interim respondents contend that the ALJ erred in awarding temporary disability and medical benefits after October 31, 1995 in view of Dr. Rodriguez’s finding that the claimant reached MMI on November 1, 1995. Alternatively, the Interim respondents contend that the ALJ erred in awarding temporary disability benefits beyond December 18, 1995, the date the claimant rejected an offer of modified employment. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review of whether the ALJ erred in awarding temporary disability benefits beyond October 31, 1995. Therefore, we set aside that portion of the award, and remand for entry of a new order.
A.
Under § 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.) the claimant’s entitlement to temporary disability benefits terminates at MMI. Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, ch. 112 at 456 for determinations of MMI on or after July 1, 1996] provides that the “authorized treating physician who has provided the primary care” shall make the initial determination of MMI. In the absence of an independent medical examination (IME) on the issue of MMI, the ALJ is not free to disregard the primary treating physician’s MMI determination. Aren Design, Inc. v. Becerra, 897 P.2d 902
(Colo.App. 1995). The statute also provides that the ALJ may not hold a hearing on the validity of the primary treating physician’s MMI determination until the completion of the IME.
However, it is true that an IME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning the identity of the “primary care” physician, and whether that physician made an initial determination of MMI. Similarly, where the claimant has multiple “primary care” physicians with conflicting opinions on MMI, an IME is not required for the ALJ to resolve the conflict Blue Mesa Forest v. Lopez, ___ P.2d ___ (Colo.App. No. 96CA0436).
The claimant and the Travelers respondents do not dispute that Dr. Rodriguez found the claimant to be at MMI on November 1, 1995, and that no IME has been requested to contest Dr. Rodriguez’s MMI determination. However, they contend that there was a factual dispute concerning the identity of the primary care physician, and that the ALJ “apparently” resolved the dispute by finding that Dr. Kendall is the claimant’s “primary” treating physician. Alternatively, they assert that the claimant had multiple primary care physicians with conflicting opinions concerning MMI, and that the ALJ resolved the conflict in favor of Dr. Kendall, who has not determined the claimant to be at MMI. Consequently, they argue that Dr. Rodriguez’s MMI determination did not preclude the ALJ from awarding temporary disability benefits after October 31, 1995.
Contrary to these assertions, we are unable to locate any indication in the record that the parties asked the ALJ to resolve a factual dispute concerning whether the primary treating physician made an initial determination of MMI. (Tr. pp. 3-6, 118); see also, correspondence from the Traveler respondents to the ALJ dated April 25, 1996. In fact, the claimant’s appellate argument is inconsistent with the position she took in response to the Interim respondents’ Motion for Reconsideration. See Claimant’s Response to Motion for Reconsideration dated June 4, 1996.
In any case, the ALJ made no oral findings, did not issue a Summary Order and made no specific written findings of fact which suggest her resolution of a factual dispute concerning whether the claimant’s “authorized treating physician who provided the primary care” made an initial determination of MMI. Rather, the ALJ found that Dr. Rodriguez, the physician who treated the claimant on a referral from Trend, determined the claimant to be at MMI on November 1, 1995.
Similarly, the ALJ made no findings concerning the evidence that the Interim respondents made an offer of modified employment within the claimant’s medical restrictions which the claimant failed to begin on December 18, 1995. Under these circumstances, we are unable to ascertain the basis for the ALJ’s award of temporary disability benefits after October 31, 1995, and the matter must be remanded for additional findings. Section 8-43-301(8); Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
On remand the ALJ must enter a new order on the claim for temporary disability benefits after October 31, 1995, which contains specific findings of fact articulating the factual basis for the order. In the event, the ALJ reinstates an award of temporary disability benefits after October 31, 1995, the ALJ shall also enter specific findings of fact concerning the evidence that the claimant rejected an offer of modified employment within her medical restrictions.
B.
Concerning medical benefits, the ALJ required the Interim respondents to “refer Claimant for medical treatment at her current address in the San Diego area.” However, the ALJ did not order the Interim respondents to pay for any specific medical treatment. Rather, the ALJ reserved “all matters not decided” for future determination.
Consequently, the ALJ’s order is not a final determination of the Interim respondents’ liability for medical benefits See CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332
(Colo.App. 1982) (order which determines liability for benefits, but not amount of benefits is not a final order). Under these circumstances, we currently lack jurisdiction to review the ALJ’s order with regard to the referral issue. Section 8-43-301(2), C.R.S. (1996 Cum. Supp.); Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). Therefore, we dismiss without prejudice, the Interim respondents’ Petition to Review the ALJ’s order on the issue of medical benefits.
III.
As argued by the Interim respondents, the issue of permanent partial disability was also endorsed, but the ALJ made no factual determination on the issue and entered no order on the claimant’s entitlement to permanent disability benefits. As we read the ALJ’s order, the issue of permanent partial disability is one of the matters which the ALJ reserved for future determination. Our conclusion is buttressed by the fact that the Interim respondents’ Motion for Reconsideration explicitly requested an order on the claimant’s entitlement to permanent disability benefits, and the ALJ did not address the issue of permanent disability in her order of June 17.
Furthermore, the ALJ’s “reservation” of permanent partial disability for future determination neither denies or awards permanent disability benefits. Therefore, we have no jurisdiction to consider the Interim respondents’ argument that the ALJ erred in failing to adjudicate the issue. Section 8-43-301(2) Director of Division of Labor v. Smith, supra.
IV.
Lastly, we note that the claimant filed a Petition to Review the ALJ’s June 17 order. However, in her appellate brief, the claimant explained that she misread the June 17 order, and therefore withdrew her request for appellate review.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 6, 1996 as modified on June 17, 1996, is set aside insofar as it awards temporary disability benefits after October 31, 1995, and is remanded to the ALJ for the entry of a new order on this issue which is consistent with the views expressed herein. Except as noted below, the ALJ’s order is otherwise affirmed.
IT IS FURTHER ORDERED that the Interim respondents’ Petition for Review of the ALJ’s order on the issues of medical and permanent disability benefits is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed December 24, 1996
to the following parties:
Gala E. McGowan-Scott, 2525 E. Buena Ventura, Colorado Springs, CO 80909
Interim Personnel of Colo. Sags., 4855 N. Mesa St., Ste. 116, El Paso, TX 79912-5939
Current, Inc., 1005 E. Woodmen Rd., Colorado Springs, CO 80920-3181
Mari Beth Utke, Deluxe Corporation, P.O. Box 64399, St. Paul, MN 55164-0399
Ins. Co. of the State of Pennsylvania, American Intl. Adj. Co., P.O. Box 32130, Phoenix, AZ 85018
Kathy A. Bernard, The Travelers Co., P.O. Box 173762, Denver, CO 80217-3762
General Adjustment Bureau, Attn: Nancy Seng, 789 Sherman St., Ste. 100, Denver, CO 80290
Marsha A. Kitch, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For Interim Respondents)
Larry Blackman, Esq., 1290 Broadway, #708, Denver, CO 80203 (For Current Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349 (For the Claimant)
BY: _______________________