W.C. Nos. 4-118-583 4-203-101Industrial Claim Appeals Office.
August 7, 1995
ORDER OF REMAND
The respondents, Fort Lupton School District and CNA Insurance Company (CNA), seek review of a final order of Chief Administrative Law Judge Felter (ALJ), which held them liable for disability benefits prior to July 1, 1992. The respondents Fort Lupton School District and Colorado Compensation Insurance Authority (CCIA), seek review of that portion of the order which held them liable for the remaining benefits. We set the order aside and remand for entry of a new order.
The ALJ’s order, dated March 8, 1995, was entered pursuant to our Order of Remand dated February 3, 1995. Our Order of Remand contains a statement of the facts, including a summary of the ALJ’s previous order of June 21, 1994.
In our Order of Remand we noted that the claimant suffers from multiple conditions including carpal tunnel syndrome (CTS) and ulnar impaction syndrome (UIS). The issue is the extent to which CNA and the CCIA are liable for these conditions where CNA insured the employer through June 30, 1992, and the CCIA thereafter. Our remand directed the ALJ as follows:
“On remand, the ALJ shall make findings of fact concerning the cause of the claimant’s various conditions, and shall determine whether they constitute the same or different occupational diseases. Once the ALJ determines whether the claimant’s conditions constitute one or more occupational diseases, he shall determine the date of onset of disability for each disease, and apportion liability in accordance with the applicable law.”
In the March 1995 order, the ALJ recognized our holding that the “substantial permanent aggravation” requirement of § 8-41-304(1), C.R.S. (1994 Cum. Supp.), applies only to occupational diseases incurred on or after July 1, 1991. The ALJ also noted that, for diseases incurred prior to July 1, 1991, the liability of multiple insurers is governed by the last injurious exposure rule. See Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993).
The ALJ then readopted the findings of fact contained in his June 21, 1994 order. In addition, the ALJ stated that the “onset” of the claimant’s CTS was “on or about August 1, 1989,” and that she was last injuriously exposed to this condition in March 1994. The ALJ further found that the “onset” of the claimant’s UIS was “after the August 1, 1989 onset of her bilateral carpal tunnel syndrome and before Dr. Scott’s diagnosis of 1994.”
Under these circumstances, the ALJ concluded that the CCIA is liable for all benefits payable after it came on the risk on July 1, 1992. In this regard, the ALJ stated that the CCIA was “on the risk at the time of the claimant’s last injurious exposures” to CTS and UIS. The ALJ held that CNA is liable for all benefits payable prior to July 1, 1992.
I.
On review, the CCIA makes two related arguments concerning the ALJ’s March 1995 order. First, the CCIA contends that the ALJ made insufficient findings of fact concerning its liability for the UIS. Specifically, the CCIA reasons that if the claimant suffered the “onset of disability” from UIS on or after July 1, 1991, and prior to the time that the CCIA came on the risk, the substantial permanent aggravation rule applies. However, the CCIA notes that the ALJ made no finding concerning substantial permanent aggravation. Similarly, the CCIA argues the ALJ made insufficient findings of fact to support his determination that the claim for compensation in conjunction with the CTS is not governed by the substantial permanent aggravation rule. The CCIA asserts that the “onset of disability” from CTS occurred after July 1, 1991, and therefore, the CCIA cannot be held liable because there was not substantial permanent aggravation after it came on the risk. We conclude that the ALJ’s findings of fact are again insufficient.
Rights and liabilities in occupational disease cases are determined by the law in effect on the date of “onset of disability.” SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994) Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 220, (Colo.App. No. 93CA1786, September 22, 1994). Thus, where an occupational disease is incurred on or after July 1, 1991, and there have been multiple insurers on the risk, an insurer may not be held liable unless it was on the risk at the time the claimant suffered her last injurious exposure and
a substantial permanent aggravation. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995).
Here, the ALJ found that the claimant suffers from UIS which was incurred sometime between August 1, 1989 and 1994. However, contrary to our directions, the ALJ did not determine when the claimant suffered the “onset of disability” from this disease. As the CCIA argues, the ALJ’s finding is not sufficiently precise because it does not determine whether the claim is subject to the “substantial permanent aggravation” rule.
On remand, the ALJ shall make a specific determination of when the claimant sustained the “onset of disability” from UIS. As we have noted on numerous occasions, “disability” is not necessarily equated with lost time from work, but may be evidenced by such factors as lack of efficiency in the performance of assigned duties, or that the claimant is only capable of returning to work in a restricted capacity. 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); Romero v. Standard Metals Corp., 29 Colo. App. 455, 485 P.2d 927 (1971). However, the onset of disability is not to be equated with the onset of symptoms of the disease See Pope v. Texas Instruments, Inc., W.C. No. 4-108-491, November 5, 1993.
Similarly, we hold that the ALJ’s findings are insufficient to support his conclusion that the claimant suffered the “onset” of CTS in 1989. Although there is evidence that the claimant’s CTS was symptomatic in 1989, the ALJ made no finding concerning whether or not the symptoms were “disabling” in the Ricks sense. Therefore, again, the ALJ failed to make findings sufficient to determine whether the substantial permanent aggravation requirement does, or does not, govern the CCIA’s liability.
To summarize, the ALJ must enter an order which determines the specific cause (disease) or causes of the claimant’s disability and need for treatment. With respect to each disease, the ALJ shall determine date of onset of disability from the disease. Once the date of onset of disability is determined, the ALJ shall apportion liability by applying the substantial permanent aggravation requirement if the onset was on or after July 1, 1991. In the event the ALJ, in the exercise of his discretion, believes it is necessary, an additional hearing may be held for the purpose of resolving these issues.
In light of this disposition, we consider it premature to address the CCIA’s other arguments. It is also premature to address CNA’s arguments.
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 8, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed August 7, 1995 to the following parties:
Gloria Botello, 1114 Pacific Way, Ft. Lupton, CO 80621
Ft. Lupton School District, % Stephen G. Sparr, Esq. John M. Lebsack, Esq., 1225 17th St., 28th Flr., Denver, CO 80202
CNA Insurance Company, Attn: Debbie Lathram, P. O. Box 17369, Denver, CO 80217-5980
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Stephen G. Sparr, Esq. and John M. Lebsack, Esq., 1225 17th St., 28th floor, Denver, CO 80202
(For CNA Respondents)
Richard H. Glasman, Esq., 455 Sherman St., #210, Denver, CO 80203
(For CCIA Respondents)
Elsa Martinez Tenreiro, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203
(For Claimant)
By: ____________________________