W.C. Nos. 4-511-701, 4-512-966.Industrial Claim Appeals Office.
July 25, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded medical benefits for a bilateral hip injury. We affirm.
In May 2001, the claimant suffered an admitted occupational disease affecting his low back and abdomen resulting from the duties of his full-time employment as a delivery driver for MultiFoods. The injury was treated by Dr. Ladwig. On December 2, 2002, the claimant underwent fusion surgery to treat the industrial injuries. Unfortunately, the claimant developed a secondary staph infection after the fusion surgery that required two subsequent surgeries.
The claimant did not return to work for MultiFoods after the fusion surgery. Instead, the claimant created his own business called Barela Trucking where he worked as a delivery driver until September 2004. (Tr. pp. 54, 56).
In May 2004, the claimant was diagnosed with bilateral avascular necrosis (AVN). Dr. Isaacs opined the claimant’s AVN was aggravated by the 2001 industrial injury and recommended hip replacement surgery. Dr. Ladwig and Dr. Janssen agreed with Dr. Isaacs about the cause of the claimant’s advanced hip problem and the recommended surgery. Consequently, in July 2004, the claimant requested authorization for a bilateral hip replacement.
In the interim a Division-sponsored independent medical examination (DIME) physician determined the claimant reached maximum medical improvement (MMI) for the back injury on October 5, 2004. The DIME recommended future medical treatment consisting of back strengthening exercises and follow up visits with Dr. Janssen to monitor the claimant’s recovery from the fusion surgery.
Based upon the evidence presented at a hearing on January 20, 2005, the ALJ determined the claimant’s condition continued to deteriorate after the back surgeries and the claimant’s limp increased. Crediting the opinions of Dr. Janssen and Dr. Isaacs the ALJ also found the claimant proved by a preponderance of evidence that his advanced bilateral hip condition and need for bilateral hip replacement was work-related. Therefore, the ALJ determined the claimant is not at MMI for all components of the industrial injury, and awarded the requested medical benefits.
On review the respondents point out that the claimant did not work for the respondents after December 2002 and bilateral hip surgery was not recommended until April 2004. Therefore, they argue the ALJ erroneously failed to determine whether the claimant was last injuriously exposed to the hazards that aggravated the AVN while employed by Barela Trucking.
The claimant argues the respondents waived this argument. We agree.
Section 8-41-304(1), C.R.S. 2004, provides that liability for an occupational disease is governed by the “last injurious exposure” rule. Royal Globe Insurance Co. Collins, 723 P.d. 731 (Colo. 1986). Under that rule, the employer in whose employment the claimant is “last injuriously exposed to the hazards of such disease and suffered a substantial, permanent aggravation” is solely responsible for the injury without contribution from any other employer. Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). Because this statute permits an employer and its insurer to shift liability to other employers and insurers, the statute creates an affirmative defense. See Cowin and Co. v. Medina, 860 P.2d 535 (Colo.App. 1992) (party relying upon a statutory exception has the burden of establishing the factual predicate for its application). Moreover, an affirmative defense, is waived unless specifically pled. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
The respondents’ Response to Application for Hearing does not mention the defense established by § 8-41-304, or otherwise indicate the respondents’ intent to shift liability to a subsequent employer or insurers. Indeed, the respondents did not expressly argue it was exempt from liability under the last injurious exposure rule until the filing of its post-hearing position statement. We also note that at the commencement of the hearing, the respondents made no mention of the affirmative defense. Rather, the respondents’ counsel delineated the issue as the “causality of [claimant’s] hip complaints in the original work-related condition.” (Tr. p. 5). Accordingly, the record fails to demonstrate the affirmative defense was timely pled.
It is true that during cross-examination the claimant admitted he was a part-time delivery driver for his own trucking company for approximately 14 months after December 2002. The claimant also stated that the physical activities required of that employment were similar to his prior employment at Multifoods. (Tr. pp. 44, 53-55). However, we cannot say that this testimony was sufficient to alert the claimant that the respondents intended to raise the defense created by § 8-41-304, because the testimony is also relevant to the respondents’ general argument that the claimant’s hip problem is unrelated to the 1992 industrial injury. This line of questioning could also be relevant to the respondents’ contention that the need for hip surgery was caused by the subsequent employment. Under these circumstances, we cannot say that the claimant tried by consent the issue of § 8-41-304. See Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969); Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). Consequently, the respondents’ argument was waived and not preserved for appellate review.
We also reject the respondents contention the ALJ erroneously failed to determine the cause of the claimant’s need for hip surgery in accordance with Royal Globe Insurance Co. Collins, supra. The respondents correctly point out that § 8-41-304(1) does not govern the determination of liability for medical benefits in a claim based upon an occupational disease. Rather, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits, which is determined under the usual rules governing liability for workers’ compensation benefits. Thus, the insurer “on the risk” when medical expenses are “incurred” is the carrier which insured the employer whose conditions of employment caused the need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Because the burden of proof is similar to the usual standard for proving causation, the ALJ’s failure explicitly to cite Royal Globe is not fatal to the order.
Further, the ALJ is presumed to have considered the entire record and reviewed the arguments of counsel. Cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). However, the ALJ is not held to crystalline standard in articulating her findings of fact, and is not required to address theories or evidence implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ credited the claimant’s testimony that he consistently reported leg pain to the treating physicians (Tr. pp. 37-39), and the opinions of Dr. Janssen and Dr. Isaacs. These credibility determinations inherently reflect that the ALJ found unpersuasive evidence that the claimant’s part-time employment with Barela Trucking caused the need for bilateral hip replacement surgery. (See Finding of Fact 12).
The respondents also argue the ALJ misapplied the burden of proof in failing to require the claimant to overcome the DIME physician’s finding of MMI by “clear and convincing evidence” as required by § 8-42-107(8)(c), C.R.S. 2004. We perceive no reversible error.
Section 8-42-107(8)(c), provides that the DIME physician’s opinion on MMI is binding except where overcome by clear and convincing evidence. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). It is now well established that the determination of MMI requires the DIME physician to assess as a matter of diagnosis whether the various components of the claimant’s medical condition are causally related to the industrial injury. Therefore, the DIME physician’s determinations concerning causation are binding unless overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189-190 (Colo.App. 2002).
However, the DIME process constitutes an exception to the usual burden of proof which requires the claimant to prove entitlement to benefits by a preponderance of the evidence. Section 8-43-201(2), C.R.S. 2004. See Cordova v. Industrial Claim Appeals Office, supra (DIME physician’s opinion that alleged worsening of condition was caused by industrial injury so as to justify reopening was not entitled to presumptive effect) Public Service Co. v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001) (DIME process did not apply to determination of whether, in the context of apportionment, preexisting impairment was disabling). Consequently, the threshold issue of whether an injury is compensable, remains a question of fact for resolution by the ALJ based on the “preponderance” of evidence standard. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000)
Here, as in Faulkner, the issue was whether, in the first instance, the claimant carried the burden of proof to establish he suffered a compensable hip injury under § 8-43-301(2). Therefore, the ALJ did not err in requiring the claimant to prove the cause of the hip problem by a preponderance of evidence. Further, the medical reports of Dr. Janssen, Dr. Ladwig and Dr. Isaacs contain substantial evidence that the claimant’s AVN was accelerated by the 2001 industrial injury. (Claimant’s Hearing Exhibits 1, 2, 3). Consequently, we must uphold the ALJ’s finding that the advanced hip condition is a compensable component of the 2001 injury claim.
Moreover, the ALJ also inferred that the DIME physician did not purport to evaluate the claimant’s hip problem. (Finding of Fact 17); see Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (where the DIME physician’s opinions are ambiguous, it is for the ALJ to determine as a matter of fact the nature of the DIME physician’s opinion on the cause of the claimant’s condition). The ALJ’s finding is consistent with evidence in the DIME report that the DIME physician limited his evaluation to the claimant’s “low back pain with radiating pain into legs” and noted that “the relationship of [claimant’s] hip problem to work” was scheduled for an evidentiary hearing. (Hearing Exhibit 4, October 11, 2004).
Further, we conclude the ALJ’s findings that the claimant proved a compensable hip injury which requires additional curative treatment and that the DIME physician did not consider the cause of the hip injury cannot be read in any manner other than to say that the claimant clearly and convincingly overcame the DIME physician’s opinion that the claimant reached MMI for all compensable components of the industrial injury. See
(Finding of Fact 19; Conclusion of Law 4). Accordingly, the ALJ’s order demonstrated that the proper standard was applied to resolve the question of liability for the award of medical benefits. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra, (we may consider findings which are necessarily implied by the ALJ’s order).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 21, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Curt Kriksciun
Jerry Barela, Thornton, CO, Angela Vasquez, Multifoods, Englewood, CO, Amy Kelley, Crawford Company, Englewood, CO, John M. Connell, Esq., Denver, CO (For Claimant).
Robert Hinckley, Jr., Esq., Denver, CO (For Respondents).