W.C. No. 4-364-807Industrial Claim Appeals Office.
December 29, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ). The claimant contends the ALJ erroneously refused to impose liability on the respondents for temporary disability and future medical benefits. We disagree, and therefore, affirm.
The claimant worked as a laborer for SOS Staffing Services, Inc., (SOS) from August 1997, through November 30, 1997. The claimant worked as a sales associate for Dillards from October 14, 1998 through January 1, 1999. The ALJ found that in the interim the claimant ran errands and answered the telephone for her father’s business.
The claimant testified that in November 1997 she began experiencing symptoms of numbness in her hands. The claimant was later diagnosed with carpal tunnel syndrome (CTS) and treated conservatively. On July 20, 1998, Dr. Hart recommended surgery.
The respondents paid for all past medical treatment of the injury. The claimant then applied for a hearing on the issues of future medical treatment including the surgery recommended by Dr. Hart, and temporary disability benefits commencing November 25, 1997.
The ALJ found and it is undisputed, that the claimant sustained an occupational disease, which affected her hands. The ALJ also found the claimant suffered a substantial, permanent aggravation of her injury after the termination of her employment at SOS. Consequently, the ALJ determined the respondents are not liable for the claimant’s temporary disability benefits. Further, the ALJ determined that the respondents are not liable for future medical treatment. In support, the ALJ found that the need for further medical treatment is not the result of the claimant’s employment at SOS.
I.
On review, the claimant contends the ALJ misapplied the law in failing to hold the respondents liable for temporary disability and future medical benefits due on account of the occupational disease. We disagree.
The claimant’s arguments notwithstanding, the ALJ’s order expressly reflects his consideration of the applicable law. Section 8-41-304(1), C.R.S. 1999, governs the determination of liability for an occupational disease where the claimant is exposed to the hazards of the disease during successive employment. The statute 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 to contribution from any prior employer or insurance carrier. (Emphasis added).
The purpose of the statute is to relieve the claimant of the burden of trying to prove the exact contribution from multiple employments. Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978).
A last injurious exposure exists where the claimant is exposed to a concentration of hazards which would be sufficient to cause the disease if continued over a prolonged period of time. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). However, there is no requirement that a last injurious exposure actually cause the disease. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The determination of whether the claimant has suffered an injurious exposure which has substantially and permanently aggravated the occupational disease is a question of fact for resolution by the ALJ. Monfort Inc. v. Rangel, supra. Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In so doing, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence and reasonable inferences drawn from the record. Monfort Inc. v. Rangel, supra.
The ALJ was not required to credit the claimant’s testimony that she suffered no “permanent” aggravation at Dillards. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34
(1970). Further, there is substantial, albeit conflicting evidence that the claimant’s condition improved after the termination of her employment at SOS and worsened during her subsequent employment. (See Tr. p. 56; Dr. Schwender April 10, 1998, May 1, 1998; Dr. Mock April 8, 1998). Under these circumstances, the ALJ reasonably inferred that the claimant was hazardously exposed and suffered a substantial, permanent aggravation of her condition after her employment at SOS. Moreover, the ALJ’s findings compel the conclusion that SOS is not liable for the claimant’s temporary disability benefits.
Admittedly, the harsh effect of the “last injurious exposure rule” is to place the entire responsibility for all disability benefits due on account of an occupational disease on a single employer, even if that employer did not cause the injury. However, neither we nor the ALJ may disregard the requirements of § 8-41-304(1). Therefore, regardless of whether disability benefits become due prior to a “last injurious exposure,” which results in a substantial, permanent aggravation of the disease, there is no authority for imposing liability on any previous employer. In fact, an ALJ may order a subsequent employer to reimburse a prior employer for disability benefits paid prior to the last injurious exposure. See Reynolds v. Virtual Industries, Inc., W.C. No. 4-266-253 (July 23, 1999); Sanchez v. Central Bank of Denver, W.C. No. 3-912-325 (January 9, 1995).
Furthermore, the claimant’s reliance on our conclusions i Borghi v. We Care Hair, W.C. No. 4-250-456 et. al., (May 17, 1999), for a contrary result is misplaced. In Borghi an ALJ found that the claimant suffered a substantial, permanent aggravation of her occupational disease subsequent to maximum medical improvement. Consequently, the ALJ ordered the subsequent employer to pay all temporary disability benefits due on account of the aggravation. We upheld the order on review, however, we did not imply that the employer in whose employment the claimant is last injuriously exposed is only responsible for temporary disability benefits which accrue during that employment. In fact Borghi did not involve a dispute concerning liability for disability benefits which accrued prior to the permanent aggravation, and thus, Borghi is legally distinguishable from the issue presented here.
II.
As argued by the claimant, the “last injurious exposure” rule does not govern liability for medical benefits in the case of an occupational disease. Rather, the insurer “on the risk” at the time the claimant’s medical expenses are incurred, is liable for those expenses. Royal Globe Insurance Co. v. Collins, supra. In a series of cases we have held that the insurer “on the risk” when medical expenses are incurred is the insurer which insured the employer whose condition caused the need for treatment. Rodriguez v. Benny’s Concrete, Inc.,
W.C. No. 3-825-227 (February 24, 1999), aff’d., Rodriguez v. California Indemnity Insurance Company, (Colo.App. No. 99CA0475, October 21, 1999) (not selected for publication); Martinez v. Storage Technology Corporation, W.C. No. 4-175-875 (August 31, 1995). Therefore, to impose liability for medical benefits on a particular employer, the evidence must demonstrate that the employment with that employer caused, aggravated or accelerated claimant’s injury.
The claimant contends that because Dr. Hart recommended CTS surgery prior to her employment at Dillards, the respondents are “on the risk,” for the cost of the surgery. Therefore, the claimant contends the ALJ erred in failing to hold the respondents liable for the cost of the surgery. Again we disagree.
The ALJ found the claimant’s need for future treatment is the result of the claimant’s repetitive activities subsequent to employment at SOS. The ALJ’s finding is supported by evidence that the claimant’s condition improved until five months after the termination of her employment at SOS. The ALJ also relied on Dr. Basse’s June 30, 1998, report in which she opined that the claimant’s ongoing symptoms are more likely related to the claimant’s current activities than her employment at SOS. Therefore, the ALJ did not err in refusing to hold the respondents liable for the claimant’s CTS surgery.
The claimant’s further arguments have been considered and are not persuasive.
Finally, permanent disability was not endorsed for adjudication and the ALJ’s order does not purport to award or deny permanent partial disability benefits. Therefore, the claimant’s arguments on this issue are premature.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 21, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 29, 1999 to the following parties:
Melissa Barbour, 3110 Westwood Blvd., Colorado Springs, CO 80918
SOS Staffing Services, Inc., Attn: Mark Marshall, 1415 S. Main St., Salt Lake City, UT 84115
Karen Heser, ACE USA, 1415 S. Main St., Salt Lake City, UT 84115
Bankers’ Standard Fire Insurance Company, P.O. Box 2941, Greenwood Village, CO 80150-0141
Patrick J. McDivitt, Esq., 6 S. Tejon, #400, Colorado Springs, CO 80903 (For Claimant)
Nicolle H. Martin, Esq., 999 18th St. Ste. 1600, Denver, CO 80202 (For the Respondents)
Katherine Markheim Lee, Esq. and Aaron C. Foy, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents)
BY: A. Pendroy