W.C. Nos. 4-459-193 4-516-447.Industrial Claim Appeals Office.
June 6, 2003.
FINAL ORDER
The claimant and the self-insured employer, King Soopers, Inc., (hereinafter referred to as the respondent) separately petitioned for review of a Corrected Order of Administrative Law Judge Friend (ALJ) which determined the claimant suffered a compensable occupational disease and ordered the respondent to provide temporary disability and medical benefits. We affirm.
The ALJ found the claimant suffered an occupational disease from heavy labor performed during his employment with Denver West Remediation (DWR) in August 1999. The injury affected the claimant’s right upper extremity. The ALJ also found the claimant was last injuriously exposed and suffered a substantial permanent aggravation on September 8, 2001, while employed by the respondent.
In an order dated October 16, 2002, the ALJ awarded temporary total disability benefits from September 9, 2001, through May 21, 2002, temporary partial disability benefits from May 22 to May 26, 2002, and temporary total commencing again May 27, 2002 based upon the claimant’s average weekly wage (AWW) during his employment for the respondent.
The claimant and the respondent timely appealed the order. The claimant also moved for a corrected order requiring the respondent to pay medical expenses incurred after September 8, 2001 to treat the industrial injury.
On November 8, 2002, the ALJ entered a Corrected Order which required the respondent to pay all compensable medical expenses incurred after September 8, 2001. The claimant filed a petition to review the Corrected Order and moved for an order dismissing the respondent’s appeal for failure to file a petition to review the Corrected Order. The ALJ denied the claimant’s motion on March 6, 2003.
I.
Initially, we reject the claimant’s contention the ALJ erroneously denied his motion to dismiss the respondent’s appeal. Section 8-43-302(1)(b), C.R.S. 2002, provides that an ALJ may issue a corrected order within 30 days after the entry of an order to correct an error caused by mistake or inadvertence. The statute also states that a corrected order “may be appealed in the manner provided in this article for any other order.”
Under § 8-43-301(2), C.R.S. 2002, an ALJ’s order is final unless a petition to review is filed within twenty days of the date the ALJ’s order is mailed to the parties. The requirement to file a timely petition to review also applies where a party seeks review of a “supplemental order,” issued pursuant to § 8-43-301(5), C.R.S. 2002.
However, the courts have held that the failure to file a petition to review a supplemental order is not a jurisdictional defect where the supplemental order does not address any issue raised in a party’s petition to review. See § 8-43-301(6), C.R.S. 2002; Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146 (Colo.App. 1988); Memorial Hospital v. Industrial Claim Appeals Office, (Colo.App. No. 88CA0284, November 3, 1998) (not selected for publication). In Michalski an ALJ entered an order determining the amount of funeral expenses the respondents were required to pay. Both parties appealed the ALJ’s order. The ALJ later entered a supplemental order which addressed the issue of funeral expenses but made no reference whatsoever to the issues raised in the claimant’s petition to review. The Michalski court held that because the supplemental order did not address the claimant’s issues on review, the claimant’s failure to petition to review the supplemental order was not fatal. In so doing the court stated that:
“Had the hearing officer addressed claimant’s contentions, claimant’s subsequent inaction could reasonably be construed as satisfaction with the supplemental resolution, and an election not to pursue the matter further. Here, because the supplemental order did not address claimant’s contentions, her petition for review remained pending.”
Here, the respondent’s Petition to Review the ALJ’s October 16 order alleged the ALJ erroneously determined the claimant suffered an occupational disease for which the respondent is liable. In contrast, the claimant alleged the ALJ erroneously calculated the AWW, erroneously denied certain disability benefits and failed to order the respondent to pay medical benefits. The ALJ’s Corrected Order required the respondent to pay medical benefits for treatment incurred after September 8, 2001. However, the Corrected Order does not alter the findings, conclusions or order concerning the issues raised in the respondent’s Petition to Review. Under these circumstances, we agree with the ALJ’s implicit determination that the respondent’s Petition to Review the October 16 order remains pending. Therefore, we shall proceed to consider the respondent’s substantive arguments.
II.
The respondent contends there is no evidence the claimant’s condition was caused by repetitive motion activities at work. Instead, the respondent contends the claimant suffered a distinct injury on August 16, 1999, while moving a 55 pound drum during his employment for DWR. In support, the respondent relies on the claimant’s testimony that he performed the same lifting task for several months without any symptoms. The respondent also cites Dr. Hughes admission that the claimant’s injury is one caused by force and could have occurred on August 16, 1999. Under these circumstances, the respondent contends the ALJ erred in finding the claimant suffered an injury in the nature of an occupational disease instead of an accidental injury. We perceive no basis to disturb the ALJ’s determination.
Where an “injury” is traceable to a particular time, place and cause the claimant has sustained an “industrial accident.” Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). In contrast, where an “injury” is acquired in the ordinary course of employment and is a natural incident of the employment, the claimant has sustained an “occupational disease.” Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77
(Colo.App. 1993). The fact that a condition becomes acutely symptomatic at a particular time does not compel the conclusion the claimant suffered an accidental injury. Campbell v. IBM Corporation, supra; Masdin- Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
The determination of whether the claimant sustained an occupational disease or an accidental injury is factual in nature, and therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record, and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. 2002; Campbell v. IBM Corporation, supra.
Application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, and his assessment of the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, supra.
The ALJ found the claimant’s employment at DWR required strenuous repetitive demolition activities. He also found that on August 16, 1999, the claimant moved a 55 gallon drum and thereafter, complained of pain in his wrist. However, the ALJ found the claimant did not associate his wrist pain with the lifting incident on August 16 when he reported his pain to the employer and sought treatment from his personal physician. Rather, the ALJ found the claimant did not mention the August 16 incident until September 15 when he was examined by Dr. Singer. Furthermore, at the hearing the claimant stated that he believed his injury was caused by “wear and tear on the right wrist in the performance of his job duties” at DWR. (Tr. p. 64).
The respondent’s arguments notwithstanding, the ALJ reasonably inferred that had the claimant attributed his wrist pain to a specific injury on August 16, he would have reported the incident to the treating physicians. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ free to credit part or none of a witness’s testimony). Under these circumstances, the ALJ was not persuaded that the claimant’s wrist pain was the result of a specific trauma on August 16.
In contrast, the ALJ’s finding that the claimant suffered an occupational disease is supported by the claimant’s testimony that he felt pressure in his right wrist and hand on a continuous basis while moving oil drums at DWR. (Tr. p. 59). Further, Dr. Hughes testified that he diagnosed the claimant as having “sustained a development of a cumulative trauma disorder of his right wrist in the course of repetitive use of a sledge hammer and repetitive manual handling activity I think at the Denver West Remediation on or about August 16, 1999.” (Tr. p. 94). Dr. Hughes also opined that the primary injurious mechanism was force and repetition. (Tr. p. 95). It follows that we must uphold the ALJ’s finding that the claimant suffered an occupational disease and it is immaterial Dr. Hughes admitted it was “possible” the claimant suffered a wrist sprain while handling a single 55 gallon oil drum on August 16. (Tr. p. 98); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is for ALJ to resolve internal inconsistencies in expert medical testimony); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inferences may be drawn from the evidence, we may not substitute our judgment for that of the ALJ).
For occupational diseases which arise on or after July 1, 1991, the employer in whose employment the claimant was last injuriously exposed and “suffered a substantial, permanent aggravation” of the disease is solely liable for all compensation benefits due on account of the disease. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Insofar as the claimant suffered an occupational disease, the respondent does not dispute the ALJ’s finding that the claimant was last injuriously exposed and suffered a substantial, permanent aggravation while employed by the respondent. Therefore, the ALJ did not err in holding King Soopers, Inc. responsible for the injury.
In view of our disposition we need not address the respondent’s contention that the claimant’s condition is the result of a natural worsening of the accidental injury he sustained on August 16, 1999, and therefore, DWR is responsible for the workers’ compensation benefits awarded on account of the injury.
III.
The claimant contends he suffered the onset of disability from the industrial injury in August 1999. Therefore, the claimant argues the ALJ erred in failing to award temporary disability benefits for lost time from work between August 23, 1999 and September 8, 2001 and erroneously calculated the AWW based on his wage rate with the respondent. We disagree.
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury caused a disability, that he left work as a result of the disability, that he was disabled for more than three regular work days and that he suffered an actual wage loss. Section 8-42-103(1)(b), C.R.S. 2002. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). In this context, the term “disability” refers to the claimant’s inability to perform his regular employment not whether the claimant is unable to perform other jobs available in the labor market McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
Temporary total disability benefits are paid in an amount equal to sixty-six and two- thirds percent of the claimant’s AWW. Section 8-42-105(1), C.R.S. 2002. AWW is generally determined by the wage the injured worker received at the time of the injury. For claims based upon an occupational disease the date of injury is the date the claimant suffered the onset of disability. Henderson v. RSI, Inc., 824 P.2d 91
(Colo.App. 1991).
The “onset of disability” occurs when the injury physically incapacitates the claimant so that he cannot perform his work with the usual efficiency. See Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998); Robbins Flower Shop v. Cinea, 894 P.2d 63
(Colo.App. 1995). Incapacity may be evidence by lost time from work. However, it may also be evidenced by reduced efficiency in the performance of regular duties, or medical restrictions affecting the claimant’s ability to perform his regular duties. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986).
The claimant testified that, after August 16 he continued to perform his regular job duties for DWR but missed work starting August 23 as a result of wrist pain secondary to the industrial injury. (Tr. pp. 19, 59-60). However, with record support, the ALJ found the claimant did not notify the employer he was missing work as a result of an industrial injury. (Finding of Fact 3). Further, neither Dr. Domaleski nor Dr. Singer restricted the claimant from his regular employment and the claimant admitted he did not give DWR any medical form releasing him from work before he was laid off due to a reduction in workforce. (Tr. pp. 24, 68). Based upon this evidence the ALJ reasonably inferred the claimant failed to prove he suffered the onset of disability in August 1999.
To the contrary, the record amply supports the ALJ’s determination that the claimant was not restricted from performing his pre-injury employment until after the September 8 aggravation of the disease. Thus, the ALJ did not err in failing to award temporary disability benefits prior to September 8, 2001 or calculating AWW based on the claimant’s lower earnings with the respondent instead of his higher wage with DWR.
IT IS THEREFORE ORDERED that the ALJ’s Corrected order dated November 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 6, 2003 to the following parties:
Michael E. Berce, 1805 Eaton, #2, Lakewood, CO 80214
Denver West Remediation, 10808 Highway 93, Unit 3T, Golden, CO 80403-8200
Reliance Insurance Company, P. O. Box 52106, Phoenix, AZ 85072-2106
Industrial Systems Associates, c/o Coors, 17735 W. 32nd Ave., RC 700, Golden, CO 80401
Royal SunAlliance, P. O. Box 6506, Englewood, CO 80155
King Soopers, Inc., P. O. Box 5567, Denver, CO 80217
Northern Pipeline, 7630 Dahlia, Commerce City, CO 80022
Zurich Insurance Company, P. O. Box 370308, Denver, CO 80237
The Weitz Company, 4725 S. Monaco St., #100, Denver, CO 80237
Continental Casualty Ins. Co., c/o Ruth Ann M. Kuehl, RSKCo, P. O. Box 17369 T. A., Denver, CO 80217
TPM Staffing Services, P. O. Box 1025, Castle Rock, CO 80104-1025
Legal Department, Pinnacol Assurance — Interagency Mail
Joseph H. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents Denver West Remediation and Reliance Insurance Company)
Christopher Condit, Esq., 625 E. 16th Ave., #100, Denver, CO 80203 (For Respondents Industrial Systems Associates and Royal SunAlliance)
Kent D. Enwright, Esq., P. O. Box 539, Denver, CO 80201-0539 (For Respondent King Soopers, Inc.)
Ricky Benjamin, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents Northern Pipeline and Zurich Insurance Company)
Karen Gail Treece, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents The Weitz Company and Continental Casualty Ins. Co.)
Glen P. Goldman, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents TPM Staffing Services and Pinnacol Assurance)
BY: A. Hurtado