W.C. Nos. 3-975-299, 4-174-093, 4-249-325Industrial Claim Appeals Office.
June 22, 1998
FINAL ORDER
The Colorado Compensation Insurance Authority (CCIA) and its insured, Fountain School District (collectively the CCIA respondents), seek review of an order of Administrative Law Judge Wheelock (ALJ) which required them to pay medical benefits and temporary partial disability benefits for an occupational disease. We affirm.
The claimant began employment with the Fountain School District (employer) in 1986. On February 1, 1990, the claimant suffered a compensable head injury. That injury is the subject of W.C. No. 3-975-299. The Transportation Insurance Company/CNA (CNA), which was the employer’s workers’ compensation insurer until July 1, 1992 when the CCIA became the insurer, admitted liability and provided medical treatment from Dr. Kendall, Dr. Brady, and Dr. Gibson. The claimant also treated with Dr. Zimmer for migraine headaches, muscle tension headaches, chronic cervical spine tension, muscle tension, and a sleep disorder, all of which predated the 1990 injury. The claimant reached maximum medical improvement (MMI) from the 1990 injury on March 15, 1991, and resumed her regular employment duties.
The claimant subsequently developed upper extremity problems, and filed a workers’ compensation claim alleging a cumulative trauma injury on January 24, 1992. That claim is the subject of W.C. No. 4-174-093. The claimant was later diagnosed with bilateral carpal tunnel syndrome (CTS) and fibromyalgia. CNA admitted liability. The claimant was placed at MMI on January 24, 1994, with permanent impairment of 19 percent of the upper extremities bilaterally.
The claimant’s condition continued to worsen. As a result, the claimant filed another claim, which is the subject of W.C. No. 4-249-325, seeking benefits from the CCIA respondents. The claim alleged an injury on March 10, 1995, due to a worsening of her cumulative trauma disorder/fibromyalgia. The CCIA respondents admitted liability for the worsened CTS, but expressly denied liability for the fibromyalgia. Dr. Foster placed the claimant at MMI for the worsened CTS on July 3, 1996.
The ALJ found that the repetitive activities required of the claimant’s employment commencing late 1991 permanently aggravated her pre-existing fibromyalgia symptom complex, and caused the claimant to develop an occupational disease diagnosed as cumulative trauma disorder/fibromyalgia. Further, the ALJ determined that the claimant’s condition was substantially and permanently aggravated after July 1, 1992, when the CCIA became the insurer on the risk. Consequently, the ALJ determined that the CCIA respondents are responsible for the medical expenses incurred by the claimant for treatment of the fibromyalgia beginning March 1995.
The ALJ also found that due to the aggravation of her pre-existing condition, Dr. Zimmer removed the claimant from work between May 8 and August 13, 1995. She returned to work in August 1995, but the ALJ found that the claimant changed positions because of her condition and as a result, lost $2,000 in income during the school year August 1995 through May 1996. Therefore, the ALJ concluded the claimant is entitled to temporary partial benefits “equal to a wage loss of $2,000” for that period, and ordered the CCIA respondents to pay temporary partial disability benefits “in an amount to compensate” the claimant for that loss. Finally, the ALJ ordered the CCIA to pay ongoing temporary partial disability benefits commencing September 1996, when Dr. Hall restricted the claimant to working no more than four hours a day.
I.
On review, the respondents contend there is insufficient evidence to support the ALJ’s finding that the claimant’s ongoing symptoms of fibromyalgia are due to an occupational disease. The CCIA respondents contend that the claimant’s fibromyalgia is due to a worsening of her pre-existing condition, or the effects of the 1990 industrial injury. Therefore, they argue the ALJ erred in requiring them to pay medical and temporary disability benefits in connection with the fibromyalgia. We disagree.
An occupational disease is a disease which results directly from the conditions under which the claimant performs her employment, and “can be fairly traced to the employment as a proximate cause.” Section 8-40-201(14), C.R.S. 1997; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The existence of a preexisting condition or injury does not preclude the claimant from proving a compensable injury due to an occupational aggravation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
The question of whether the claimant’s condition is the result of a pre-existing non-occupational disease, or the natural consequence of an accidental injury or an occupational disease, is one of fact for resolution by the ALJ. F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s determination if it is supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1997; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Moreover, the substantial evidence standard requires that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and her assessment of the sufficiency and probative weight of the evidence, including expert medical testimony. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The respondents’ arguments not withstanding, there is substantial evidence in the claimant’s testimony and the testimony of Dr. Zimmer and Dr. Hall to support the ALJ’s finding that the claimant’s employment activities permanently aggravated her pre-existing fibromyalgia. (Tr. pp. 15, 70-72, 85, 110, 112; Zimmer depo. pp. 22, 25, 72). Dr. Hall testified that the claimant suffered an overuse syndrome beginning in the winter of 1991 which manifested as both CTS and a worsening of the fibromyalgia. (Tr. pp. 81-83). Similarly, Dr. Zimmer stated that the claimant experienced an inflammatory process in 1991 and 1992 which caused the CTS and aggravated the fibromyalgia. (Zimmer depo. pp. 22, 24). Therefore, we must uphold the ALJ’s finding that the claimant suffered an occupational disease of fibromyalgia. The existence of evidence which, if credited, might support a contrary result is immaterial. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (substantial evidence is probative which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences).
II.
Next, the CCIA respondents contend that the ALJ erroneously applied § 8-41-304(1), C.R.S. 1997, in determining their liability for the occupational fibromyalgia. Again we disagree.
Section 8-41-304(1) and the predecessor statute apply where the claimant is exposed to the hazards of an occupational disease during multiple employments, or where there have been multiple insurers on the risk during the period of exposure. See former §8-41-304(1), C.R.S. 1990 Cum. Supp; Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). For occupational diseases which occurred prior to July 1, 1991, the employer in whose employment the claimant was “last injuriously exposed” to the hazards of the disease is solely liable for the disease. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). In contrast, §8-41-304(1), C.R.S. 1997, which applies to occupational diseases occurring on or after July 1, 1991, provides that the employer in whose employment the claimant was last injuriously exposed to the hazards of such disease and suffered a “substantial permanent aggravation of the disease” is solely liable for the disease.
The ALJ was not persuaded by the CCIA respondents’ argument that the onset of the claimant’s occupational fibromyalgia was February 1, 1990. The ALJ found that the claimant had no upper extremity complaints at the time of the 1990 injury or during the course of treatment for that injury. (Finding of Fact 5). Instead, the ALJ found that the date of injury for the claimant’s cumulative trauma disorder was January 1992. Thus, the current version of § 8-41-304(1) is applicable to this claim.
Furthermore, Dr. Zimmer opined that the worsening of the claimant’s condition between 1993 and 1995 was due to a substantial permanent aggravation of her condition from the repetitive computer activities she performed at work, and Dr. Hall concurred. (Tr. p. 86; Zimmer depo. pp. 31-32, 34, 37). Therefore, the record supports the ALJ’s determination that the claimant’s condition was both substantially and permanently aggravated after July 1, 1992, when the CCIA became the insurer on the risk.
Nevertheless, even if the onset of disability from the occupational fibromyalgia occurred prior to July 1, 1991, the ALJ’s application of § 8-41-304(1), C.R.S. 1997, is harmless error. The ALJ found that the claimant was last injuriously exposed to the hazards of the occupational fibromyalgia when the CCIA was the insurer on the risk. (Conclusion of Law 4). Thus, the ALJ’s findings support the conclusion that the CCIA respondents are responsible for the disease under both the predecessor statute and the “substantial, permanent aggravation” test. See Monfort Inc. v. Rangel, supra.
The respondents’ further arguments on this issue have been considered and do not alter our conclusion. We perceive no error in the ALJ’s determination that the CCIA respondents are liable for the claimant’s occupational fibromyalgia.
III.
The CCIA respondents further contend the ALJ erred in ordering them to pay temporary partial disability benefits of $2,000 for the claimant’s wage loss between August 1995 and May 1996. The CCIA respondents point out that under § 8-42-106(1), C.R.S. 1997, temporary partial disability benefits are paid at a rate equal to “sixty-six and two-thirds percent of the difference” between the claimant’s average weekly wage at the time of the injury and the average weekly wage during the temporary disability. We are not persuaded.
The ALJ held the CCIA respondents responsible for “temporary partial disability benefits in an amount to compensate the Claimant for the $2,000 loss she suffered” between August 1995 and May 1996. (Emphasis added). We do not read the ALJ’s order as requiring the CCIA respondents to pay temporary partial disability benefits in the amount of $2,000. See Conclusions of Law 5. Rather, the ALJ has directed the CCIA to pay temporary partial disability benefits based on the $2,000 wage loss.
IV.
Finally, the CCIA respondents contend the ALJ erroneously required them to pay temporary partial disability benefits after MMI. In support, the CCIA respondents cite Dr. Hall’s testimony on May 15, 1997. Dr. Hall stated that the claimant “probably” reached MMI “within the last couple of months.” (Tr. p. 86).
However, Dr. Hall did not specify the date of MMI. (Tr. p. 87). Furthermore, the ALJ noted that the issue of whether the claimant reached MMI for the fibromyalgia was not properly before him, and the CCIA respondents did not dispute the ALJ’s determination. (Tr. p. 87).
Moreover, the ALJ did not order the CCIA respondents to pay temporary disability benefits after MMI. Rather, the ALJ ordered the CCIA respondents to pay temporary partial disability benefits “commencing September 26, 1996, and ongoing.” Thus, the order inherently terminates temporary partial disability benefits in accordance with the applicable statutes or the rules of procedure.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 1997, 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. 1997.
Copies of this decision were mailed June 22, 1998 to the following parties:
Diane B. Layne, 512 Turf Trail Place, Fountain, CO 80817
Fountain School District No. 8, 425 W. Alabama Ave., Fountain, CO 80817-1703
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. (Interagency Mail)
Mary Anne Slick, CNA Insurance Co., P.O. Box 17369, T.A., Denver, CO 80217
Pamela Adams Donnelly, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
John M. Lebsack, Esq., Stephen G. Sparr, Esq., 1225 Seventeenth St., 28th Flr., Denver, CO 80202-5528 (For the CNA Respondents)
Lisa Varriale, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For CCIA Respondents)
BY: _______________________