W.C. No. 4-257-450Industrial Claim Appeals Office.
November 20, 1996
The parties separately petition for review of a final order of Administrative Law Judge Gandy (ALJ), dated March 5, 1996, as corrected on March 27, 1996. The respondent contests the ALJ’s order insofar as the ALJ did not apportion liability for the claimant’s occupational disease as provided by Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). The claimant contests the ALJ’s order denying her claim for temporary disability benefits after December 11, 1995. We affirm.
In 1995, the claimant sustained an occupational disease. The respondent admitted liability for the occupational disease, and paid temporary disability benefits from March 26, 1995 through December 11, 1995. However, the respondents asserted that at least fifty percent of the claimant’s condition is attributable to non-occupational factors. Consequently, the respondents only paid disability benefits based upon fifty percent of the claimant’s temporary total disability rate.
Crediting Dr. Lockwood’s opinions, the ALJ found that the claimant suffers from cervical spondylolysis, C3-4, C4-5, C5-6 with probable C7-C6 left greater than right nerve root irritation; psychologic factors affecting physical condition; cervical myofascial dysfunction; left median neuropraxia at the carpal tunnel with mild axonopathy; mild increased left C8 polyphasic units; and possible left C7-C8 radiculopathy. Further, the ALJ determined that the “sole cause” of the claimant’s disability is the claimant’s employment. Specifically, the ALJ determined that all of the claimant’s symptoms, disability, impairment and need for treatment were caused by the claimant’s occupational disease.
In reaching this conclusion, the ALJ acknowledged that the claimant may have had some “cervical spine pathology pre-existing her employment with King Soopers.” However, the ALJ found that the claimant had “no cervical spine, lumbar spine or upper extremity problems which were symptomatic, disabling or causing any impairment prior to beginning her employment with King Soopers.” The ALJ also determined that:
“[T]here were not sufficient pre-existing conditions nor any nonoccupational or other co-aggravating factors that contributed to the acceleration of the claimant’s occupational disease. At most, the claimant had an underlying condition which may have made her more susceptible to the aggravating factors associated with her employment.”
Consequently, the ALJ determined that the respondent is liable for one hundred percent of the workers’ compensation benefits which are due on account of the claimant’s disability.
Concerning temporary disability, the ALJ found that the claimant refused the respondent’s offer of modified employment within the medical restrictions imposed by Dr. Lockwood. Therefore, the ALJ determined that the claimant is not entitled to temporary disability benefits between December 11, 1995, the date the claimant failed to begin the modified employment, and February 9, 1996, the date of the hearing.
I.
On appeal, the respondent contends that the evidence concerning the claimant’s pre-existing degenerative disc disease and cervical spondylolys is sufficient to support an order of apportionment, and thus, the respondent argues that the ALJ erred in finding to the contrary. We perceive no error.
In Anderson v. Brinkhoff, supra, the court held that where an occupational exposure is not a “necessary precondition” to the development of the claimant’s disease, “the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.” The purpose of this rule is to ensure that the disease results from the claimant’s occupational exposure to the hazards of the disease, and not an exposure to hazards which the claimant is equally exposed outside of employment. Anderson v. Brinkhoff, 859 P.2d at 824.
In the context of an occupational disease, the term “hazard” refers to a factor which may cause, intensify or aggravate, to a reasonable degree, the disability for which compensation is sought. Anderson v. Brinkhoff, supra. The claimant bears the initial burden to prove a causal connection between the employment and her disability. However, once the claimant establishes injury and disability, the burden of proof shifts to respondent to demonstrate that the claimant’s condition was caused, aggravated or intensified by non-occupational hazard . Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
It is well established that the claimant has not sustained an “occupational disease” until and unless there is the “onset of disability.” SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994); Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994) Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Consequently, in apportioning liability for an occupational disease, the pertinent issue is not whether the claimant has a pre-existing medical condition. Rather, the issue is whether a non-occupational factor caused, accelerated or intensified the claimant’s “disability.” See Martin v. Finzer Business Systems, W.C. No. 4-144-464, September 16, 1994, aff’d Finzer Business Systems v. Industrial Claim Appeals Office (Colo.App. No. 94CA1690, May 18, 1995) ( not selected for publication) (despite pre-existing degenerative changes from the “wear and tear of everyday life,” the sole cause of the claimant’s disability was the repetitive actions of her occupation). Accordingly, we reject the respondent’s argument that the ALJ applied an incorrect legal standard in concluding that the mere existence of a pre-existing degenerative disc disease is insufficient to establish grounds for the apportionment of liability.
This conclusion is consistent with Anderson v. Brinkhoff, supra, where the claimant suffered from a hereditary condition which caused progressive emphysema. The court apportioned liability between the claimant’s occupational and non-occupational exposures to the hazards of his lung disease. However, the non-occupational hazard was determined to be the claimant’s smoking, and not the pre-existing hereditary condition.
Next, the respondent contends that there is not substantial evidence in the record to support the ALJ’s factual determinations concerning the cause of the claimant’s disability. We disagree.
It goes without saying that the ALJ’s factual determinations must be upheld if supported by substantial evidence in the record and the ALJ’s plausible inferences drawn from the evidence. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Further, the ALJ is not restricted to medical evidence in determining the cause of the claimant’s condition. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983). However, to the extent medical evidence is presented, it is solely the ALJ’s prerogative to resolve any conflicts or inconsistencies in the evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Moreover, the ALJ may credit one medical opinion to the exclusion of a contrary medical opinion. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
As argued by the respondent, Dr. Lockwood’s report dated November 9, 1995, contains some evidence that the claimant’s need for medical treatment is at least partly attributable to her pre-existing condition. However, in that same report, Dr. Lockwood stated that he related the claimant’s symptoms to her “work related activities.” That opinion was restated in Dr. Lockwood’s report dated December 8, 1995. The December 8 report also includes Dr. Lockwood’s opinion that even though the claimant had preexisting dysfunction in her cervical spine, “there is no preexisting history of associated chronic pain complaints, dysfunction, missed work, etc. related to his condition.” Furthermore, in his report of January 17, 1996, Dr. Lockwood relates the claimant’s “off-work status solely to her work-related injury.” The ALJ implicitly resolved the inconsistencies in Dr. Lockwood’s reports by crediting that part of Dr. Lockwood’s reports in which he opines that the claimant’s disability is solely the result of her employment.
The ALJ’s findings concerning the cause of the claimant’s disability are also supported by the claimant’s testimony. The claimant denied any non-occupational activities which contributed to her development of upper extremity and neck pain. (Tr. p. 43). She also testified that her 1984 injuries fully resolved, that she had been symptom free, and that she missed no work as a result of her pre-existing conditions. (Tr. pp. 8, 11).
This evidence constitutes substantial evidence to support the ALJ’s finding that the sole cause of the claimant’s disability is the occupational disease. Moreover, this finding supports the ALJ’s determination that the respondent failed to sustain its burden of proof for an apportionment of liability. Cowin Co. v. Medina, supra. As a result, we need not consider the respondent’s arguments concerning the percentage of liability which is attributable to non-industrial factors.
The respondent’s remaining arguments on this issue have been considered and do not alter our conclusion. The ALJ did not grant or deny permanent disability benefits, nor does the order purport to address the respondent’s liability for permanent disability benefits. Instead, the ALJ expressly reversed all other issues for future determination. Under these circumstances, there is not a final order concerning the respondent’s liability for permanent disability benefits, and the respondent’s due process rights were not implicated insofar as the ALJ’s denial of “any and all claims for apportionment of benefits” may be read as a determination that the respondent is liable for one hundred percent of any permanent disability benefits awarded in this claim.
II.
For her part, the claimant contends that she is entitled the reinstatement of temporary total disability benefits commencing December 12, 1995. In support, the claimant argues that the respondent’s offer of modified employment did not trigger the termination of temporary total disability benefits under §8-42-105(3)(d), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, ch. 173 at p. 827 for injuries occurring on or after July 1, 1996], because she was not the respondent’s employee at the time of the offer. We reject this argument.
Section 8-42-105(3)(d) provides that temporary total disability benefits terminate when:
“The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.”
The statute does not contain any requirement that the offer of modified employment must be made by the employer in whose employment the claimant is working at the time of the industrial injury. Similarly, § 8-42-105(3)(d) does not require that the claimant be an employee of the employer who is making the offer of modified employment. Nor may we read such non-existent provisions into the statute. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194
(Colo.App. 1995).
To the contrary, the facts in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), reflect the court’s conclusion that under § 8-42-105(3)(d) the claimant’s refusal of modified employment terminates the claimant’s right to temporary total disability benefits even if the claimant had previously been fired by the employer who is making the offer of modified employment. Therefore, we conclude that the termination of benefits under §8-42-105(3)(d) is not dependent on evidence that the claimant is an employee of the employer at the time of the offer of modified employment.
Alternatively, the claimant contends that the respondent’s offer of modified employment did not comply with the requirements of § 8-42-105(3)(d) because it was not delivered by “certified mail.” We disagree.
Admittedly, the Rules of Procedure, Part IX(C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34, preclude an insurer from unilaterally terminating temporary disability benefits unless the offer of modified employment is sent to the claimant by “certified mail.” However, Rule IX(C) applies to circumstances where the insurer seeks to terminate benefits without a hearing. See Popke v. Drywall Service of Durango, W.C. No. 4-262-510, September 18, 1996. Specifically, the requirements of Rule IX(C) are designed to ensure that the insurer is able to make an evidentiary showing which demonstrates a high degree of probability that it will succeed when the issue is tried on the merits. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988); Jyrkinen v. Peakload, Inc., W.C. No. 4-139-096, June 15, 1994.
Here, the ALJ’s order was entered after an evidentiary hearing. Furthermore, the issue was whether the claimant was entitled to additional temporary disability benefits, and not whether the respondent unilaterally terminated benefits in violation of Rule IX(C)(1)(d). Compare Jyrkinen v. Peakload Inc. of America, supra [penalties imposed for termination of temporary disability benefits in violation of Rule IX(C)(1)(b)]. Consequently, the requirements of Rule IX(C)(1)(d), are not dispositive of the issue before the ALJ. See A R Concrete Construction v. Lightner, supra; Collins v. Industrial Commission, 676 P.2d 1270 (Colo.App. 1984). Rather, the claim is governed by the provisions of § 8-42-105(3)(d).
In contrast to Rule IX(C)(1)(d), the provisions of §8-42-105(3)(d) require the offer of modified employment be made “in writing,” but do not require that the offer be delivered by certified mail. Section 8-42-105(3)(d) merely requires that the claimant “receive actual notice” of the offer of modified employment. Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, August 25, 1995, aff’d Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1590, April 25, 1996) (not selected for publication).
Here, the claimant admitted that she received the respondent’s offer of modified employment by personal delivery. (Tr. pp. 18, 33, 37, 38). This admission supports the conclusion that the claimant received actual notice of the respondent’s written offer of modified employmen . Therefore, the ALJ did not err in concluding that under § 8-42-105(3)(d), the claimant’s failure to begin the modified employment terminated the claimant’s entitlement to temporary total disability benefits.
Notwithstanding the claimant’s arguments, PDM Molding Inc. v. Stanberg, supra, does not support a contrary result. The court held in PDM that where the claimant is determined to be “at fault” for the termination of the employment in which the claimant suffered the industrial injury, the claimant is not precluded from receiving further temporary total disability benefits if the claimant proves that the post-termination wage loss is “to some degree” attributable to the industrial injury. However, the court also concluded that where the claimant sustains his burden to prove that the industrial injury has contributed to his post-termination wage loss, temporary total disability benefits would terminate in accordance with § 8-42-105(3)(a)-(d).
Here, the ALJ’s findings reflect his determination that the claimant was at fault for the termination of her employment with the respondent. See Padilla v. Digital Equipment Corp. 902 P.2d 414
(Colo.App. 1994) (“at fault” means that the claimant was responsible in significant part of the circumstances resulting in the termination); Duncan v. Hyatt Corporation, W.C. No. 4-119-289, August 11, 1995, aff’d Duncan v. Hyatt Corporation (Colo.App. No. 95CA1473, January 18, 1996). Furthermore, the ALJ determined that the claimant refused the respondent’s offer of modified employment within her medical restrictions. Accordingly, even if the industrial injury contributed “to some degree” to the claimant’s post-termination wage loss, the ALJ did not err in finding that §8-42-105(3)(d) precluded the claimant from receiving benefits after the date she failed to begin the offer of modified employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 27, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed November 20, 1996 to the following parties:
Jane G. Stewart Gill, 413 Broadview St., Windsor, CO 80550
Gene Leener, King Soopers, Inc., P.O. Box 5567, T.A., Denver, CO 80217-5567
Marsha A. Kitch, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
John Taussig, Esq., 1919 14th Street, Suite 805, Boulder, CO 80302 (For the Claimant)
BY: _______________________