W.C. Nos. 4-250-466 AND 4-252-476 AND 4-348-696Industrial Claim Appeals Office.
May 17, 1999.
FINAL ORDER
Regis Corporation d/b/a Master Cuts (Regis) and its insurer, Employers’ Insurance of Wausau (collectively the Wausau respondents), seek review of an order of Administrative Law Judge Gandy (ALJ) which required them to pay workers’ compensation benefits for an injury to the claimant’s upper extremities. The Wausau respondents contend the ALJ erred in finding the claimant suffered a substantial permanent aggravation of her condition while employed by Regis. We disagree, and therefore, affirm.
It is undisputed the claimant suffered an occupational disease while working as a hairdresser at We Care Hair. Dr. Belleville diagnosed the disease as chronic right upper extremity pain syndrome. On July 8, 1996, Dr. Belleville placed the claimant at maximum medical improvement (MMI) with ten percent permanent medical impairment of the upper extremity. Dr. Belleville also recommended the claimant discontinue cutting hair. Dr. Belleville reported that at the time of MMI the claimant had normal strength and range of motion, good grip strength, and normal wrist motion.
The ALJ found that in May 1997 the claimant began cutting hair eight to nine hours a day for Regis. Within two weeks the claimant experienced a “flare up” of pain in her right extensor and radial forearm just above the wrist.
On June 30, 1997, Dr. Belleville noted fibrous nodularity on the claimant’s right extensor forearm and diagnosed the claimant as suffering a myofascial or fibrositis condition. On September 15, 1997, the claimant was examined by Dr. Harder who diagnosed right wrist tendinitis, right elbow tendinitis with epicondylitis, rotary cuff tendinitis with loss of motion in the right shoulder, and right thoracic outlet syndrome. Dr. Harder also noted decreased motion in the right wrist and shoulder since Dr. Belleville’s July 1996 evaluation. The claimant was also examined by Dr. Pock who opined the claimant was suffering from depression from the May 1997 aggravation and that the claimant required further psychological treatment. Dr. Lockwood performed a Division-sponsored independent medical examination (IME) on October 17, 1997, and opined the claimant was not at MMI.
Based on these circumstances, the ALJ determined the claimant suffered a substantial permanent aggravation of her pre-existing occupational disease while employed by Regis. Therefore, the ALJ concluded that the Wausau respondents are solely responsible for the temporary disability and medical benefits awarded because of the aggravation.
On review, the Wausau respondents contend the ALJ erroneously proceeded with a hearing to determine which insurer is liable for the claimant’s worsened condition. The Wausau respondents contend that in the absence of a follow-up IME placing the claimant at MMI, the ALJ’s finding of a “permanent aggravation” is mere speculation. We disagree.
Section 8-41-304(1), C.R.S. 1998, 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 of contribution from any prior employer or insurance carrier.”
Thus, § 8-41-304(1) requires that the aggravation of an occupational disease be both “substantial” and “permanent” in order to shift liability from one employer or insurer to a subsequent employer.
We have previously held that an ALJ need not wait until MMI is reached to determine whether a particular employment has caused a “permanent” aggravation of a claimant’s occupational disease and that an ALJ is not “required to predict, with certainty, the outcome of” a claimant’s disease. Rather, the ALJ is “required to make his best judgment, upon the available evidence, concerning whether or not” a particular employment has resulted in a substantial and permanent aggravation. See Shedletsky v. Cafe Bagelicious Inc., W.C. No. 4-249-841 3, 1996) Thomas-Criswell v. Colorado Community Colleges, W.C. No. 4-016-387 (June 8, 1993).
The arguments of the Wausau respondents do not persuade us to depart from our conclusions in Shedletsky and Criswell.
Therefore, we adhere to our conclusion that neither MMI nor a finding of permanent medical impairment is a prerequisite to the ALJ’s determination of whether the claimant has sustained a substantial permanent aggravation of an occupational disease for purposes of § 8-41-304(1). Accordingly, the fact that Dr. Lockwood determined the claimant was not at MMI and did not rate the claimant’s permanent impairment did not preclude the ALJ from determining that the Wausau respondents are responsible for the award of additional temporary disability and medical benefits.
Further, under § 8-42-107(8)(c), the IME physician’s opinions are only afforded special weight on the degree of permanent impairment, and permanent impairment cannot be determined until MMI. Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995). Because Dr. Lockwood determined the claimant is not at MMI, he did not purport to rate the claimant’s permanent medical impairment. Thus, the ALJ was not required to afford any special weight to Dr. Lockwood’s opinions and the parties were not required to present “clear and convincing evidence” to overcome the evidence that Dr. Lockwood anticipated the claimant would have “little or no” permanent impairment.
Moreover, we must uphold the ALJ’s finding of a substantial permanent aggravation if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In determining whether there is substantial evidence to support the ALJ’s findings, we must view the evidence in the light most favorable to the prevailing party. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We must also defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996). In particular, it was for the ALJ to assess the probative value of the various evidence including the expert medical testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The claimant testified that even though she quit her Regis employment June 13, 1997, the May 1997 aggravation resulted in a loss of strength, sleep problems, and severe depression which continued through the hearing July 24, 1998. (Tr. pp. 15, 19, 22, 24). Further, the claimant’s testimony is consistent with Dr. Harder’s medical report dated September 16, 1997. In addition, Dr. Harder indicated that he thought the May 1997 injury caused permanent impairment of the right upper extremity. (Harder report February 9, 1998).
In his report dated September 2, 1997, Dr. Pock attributed the claimant’s need for further psychiatric treatment to the May 1997 employment because the claimant’s pre-existing depression had been asymptomatic for one and three-fourths years before she went to work at Regis. Dr. Pock also indicated that without effective treatment the claimant would have permanent psychological impairment.
Moreover, even though Dr. Lockwood anticipated “little or no” permanent impairment, he opined there was a “significant” aggravation of the claimant’s physical and psychological condition in May 1997. (Dr. Lockwood October 17, 1997). Dr. Lockwood also agreed with Dr. Harder’s diagnosis of thoracic outlet dysfunction.
The ALJ could reasonably infer from the claimant’s testimony and the medical reports of Dr. Harder, Dr. Pock, and Dr. Lockwood that the claimant’s employment at Regis caused an aggravation of her pre-existing upper extremity injury which was both substantial and permanent. Furthermore, this determination supports the ALJ’s order. Consequently, it is immaterial whether Dr. Belleville’s deposition testimony contains evidence which could support a contrary result.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 31, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed May 17, 1999 the following parties:
Endie E Borghi, 1025 Timber Ln, Ft Collins CO 80521
We Care Hair, 4112 S College Ave #114, Ft Collins CO 80525
Continental Casualty Co, Attn: Mary Ann Slick, PO Box 17369 T.A., Denver CO 80217-0369
Regis Corp d/b/a Master Cuts, 7201 Metro Blvd, Minneapolis MN 55439-2130
Employers Insurance of Wausau, Attn: George Fairbanks, 9457 S University Blvd #313, Highlands Ranch CO 80126
Mary E Jeffers, Esq., 1120 Lincoln St #1000, Denver CO 80203 (For the Claimant)
Harry A King Jr, Esq, 679 Grant St, Denver CO 80202 (For the Wausau Insurance Respondents)
Kim Starr, Esq, 2629 Redwing RD #330, Ft Collins CO 80526(For the Continental Casualty Respondents)
BY: _______________________________