W.C. Nos. 4-403-962 4-462-624Industrial Claim Appeals Office.
October 23, 2001
FINAL ORDER
Indemnity Insurance Company of North America (Indemnity) seeks review of an order of Administrative Law Judge Martinez (ALJ) which held Indemnity solely liable for temporary disability and medical benefits attributable to the claimant’s carpal tunnel syndrome (CTS). We affirm.
On September 12, 1998, the claimant suffered an admitted neck injury while working as a custodian for the Moffat County School District (Moffat). At the time of the injury the employer was insured by Indemnity. Effective July 1, 1999, Great States Insurance Company (Great States) became the workers compensation carrier on the risk.
The ALJ found the claimant experienced intermittent episodes of numbness and tingling in her arms and wrists prior to the 1998 industrial injury, but the symptoms generally resolved with rest. However, the ALJ found, after the industrial injury the claimant developed neck pain which radiated into the arms, and the right upper extremity symptoms “worsened considerably.” (Finding of Fact 3).
As a result of the industrial injury, the claimant underwent a cervical fusion from C4 to C7. Following surgery, the claimant’s upper extremity symptoms of pain and numbness persisted. On April 19, 1999, the claimant returned to modified employment at Moffat, which precluded her from lifting with her right arm. The claimant testified that she compensated by using the left arm to perform her job duties. The ALJ found that within a few weeks the claimant developed pain, tingling, and numbness in her left arm.
Eventually, Dr. Rainey diagnosed left CTS and performed a CTS release on May 30, 2000. Thereafter, the claimant was released to modified employment which precluded her from lifting more than five pounds with her left arm. Despite the restrictions, the claimant’s symptoms increased. Effective December 21, 2000, the claimant was physically unable to return to work.
On conflicting medical evidence, the ALJ found the 1998 industrial injury aggravated the claimant’s pre-existing upper extremity problems. The ALJ further found the claimant’s ongoing left upper extremity problems are a natural consequence of the 1998 industrial injury. Consequently, the ALJ held Indemnity solely responsible for the temporary total disability and medical benefits awarded on account of the claimant’s CTS.
On review, Indemnity first contends the ALJ misapplied the burden of proof in requiring Indemnity to prove the claimant suffered an occupational disease which was substantially and permanently aggravated after July 1, 1999. We disagree.
Admittedly, the claimant bears the initial burden to prove a causal relationship between her disability and the employment. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). Once that causal relationship is established, the employer is liable for the “direct and natural” consequences of a work-related injury. Vanadium Corp. of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957).
The occurrence of an independent, intervening injury may sever the causal connection between the industrial injury and the claimant’s condition. See Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). Because the existence of an intervening injury or disease reduces the liability of the insurer who insured the employer at the time of the original injury, it is an affirmative defense.
Where the claimant suffers an injury in the nature of an occupational disease and is exposed to the hazards of the disease during successive employments, liability for the occupational disease is governed by the “last injurious exposure rule.” Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). Under this rule, the employer in whose employment the claimant was last injuriously exposed and “suffered a substantial, permanent aggravation” of the occupational disease is solely liable for all compensation due on account of the disease Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). The burden to prove a “substantial, permanent aggravation” rests with the insurer that seeks to shift liability to a subsequent insurer. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983) (burden of proof determined by which party would be successful if no evidence was presented; burden of proof is then placed on the adverse party).
Here, the claimant contended the CTS was caused by either the 1998 industrial injury or an occupational disease. (See Claimant’s Position Statement February 28, 2001). Indemnity took the position that if the claimant’s extremity problems were the result of an occupational disease, Great States was liable for the disease under the “last injurious exposure” rule. (See Indemnity Response to Application for Hearing November 17, 2000). Under these circumstances, the ALJ correctly determined that Indemnity bore the burden to prove the claimant suffered an occupational disease which was substantially and permanently aggravated after Great States became the insurer on the risk.
Whether Indemnity sustained its burden to prove the claimant’s disability was triggered by an intervening cause is a question of fact for resolution by the ALJ. City of Aurora v. Dortch, 799 P.2d 462
(Colo.App. 1990). Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
As we read the ALJ’s order, he was not persuaded the claimant suffered an occupational disease. Rather, the ALJ was persuaded by Dr. Rainey’s testimony that the claimant’s disability and need for medical treatment was caused by the effects of the 1998 accidental injury, not any other mechanism. (Rainey depo. pp. 54, 75, 77). Furthermore, Dr. Rainey denied there was any substantial or permanent aggravation of the claimant’s condition from the job duties she performed after December 8, 1998. (Rainey depo. p. 55).
Dr. Rainey’s testimony constitutes substantial evidence to support the ALJ’s order. Consequently, it is immaterial that the record may contain medical evidence which, if credited, might support a contrary determination. See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
Moreover, the fact that the claimant’s condition continued to worsen when she was restricted to light duty supports the ALJ’s implicit determination that the claimant’s increased pain symptoms were the natural progression of the pain syndrome triggered by the 1998 industrial injury. Consequently, we may not disturb ALJ’s determination that Indemnity is liable for the temporary disability benefits awarded on account of the CTS.
Indemnity also contends the ALJ erroneously applied the “last injurious exposure” rule in determining liability for medical benefits. Again, we disagree.
Where medical treatment is necessitated by an occupational disease, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). Here, the ALJ found that:
“Under these circumstances, it is concluded that the claimant’s worsened symptoms in 1999 and 2000 were due to the natural progression of her September 16, 1998 injury and not as a result of a substantial permanent aggravation subsequently. Accordingly, the respondents Moffat County School District and Indemnity Insurance Company are liable to the claimant for medical benefits and disability compensation.” (Conclusions of Law 2).
Indemnity contends that the foregoing language reflects the ALJ’s application of the “last injurious exposure” rule in assigning liability for medical expenses incurred after July 1, 1999. However, we understand the ALJ to have found that Indemnity failed to prove any causal connection between the employment duties performed by the claimant after July 1, 1999, and the need for medical treatment. To the contrary, the ALJ attributed the claimant’s right and left upper extremity problems to a consequence of the 1998 industrial injury. Therefore, the ALJ rejected Indemnity’s contention that the medical treatment was necessitated by an occupational disease. It follows the ALJ did not apply the “last injurious exposure” rule in concluding that Indemnity is solely responsible for the disputed medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 21, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 October 23, 2001 to the following parties:
Sandra Davis, 637 E. 7th, Craig, CO 81625
Moffat County School District RE-1, 775 Yampa Ave., Craig, CO 81625-2517
Indemnity Insurance Company of North America, Lisa Cruz, ACE USA, P. O. Box 2941, Greenwood Village, CO 80150-0141
Tanja Streidt, Great States Insurance Company, P. O. Box 4143, Englewood, CO 80155-4143
Karen A. Burns, Esq., 745 Walnut St., Boulder, CO 80302 (For Claimant)
Erick Glanz, Esq., P. O. Box 4947, Steamboat Springs, CO 80477 (For Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents Moffat County School District RE-1 and Indemnity Insurance Company of North America)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Moffat County School District RE-1 and Great States Insurance Company)
BY: A. Pendroy