W.C. No. 4-694-624.Industrial Claim Appeals Office.
August 15, 2007.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) dated February 27, 2007, that determined that the claimant’s claim was compensable, that ordered the respondents to pay temporary total disability benefits, and that denied the respondent’s claim for a penalty for late reporting of the injury. We affirm.
A hearing was held on the issues of the compensability of the claim, whether the respondent was liable for temporary total disability benefits beginning on June 26, 2006, and whether the claimant was liable for a penalty for failing timely to report the injury. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked as a checker at the employer’s grocery store, a position that required her to take grocery items from a cart, pass them over the electronic price scanner, and place them on the counter to then be placed in a grocery bag for the customer. During the beginning of April 2006 the claimant lifted a case of drinks and felt a “pull” in her right shoulder. She continued performing her regular job for several weeks, during which time symptoms in her shoulder developed and worsened. She was examined by a chiropractor in June 2006 and reported to him that she had felt a pull in her shoulder when she lifted a case of drinks. She reported the accident to the store manager in late June 2006 and completed a written report of the injury on July 5, 2006. The employer referred her to Dr. Dickerson, who diagnosed a biceps tendon tear, and who testified that it was unlikely that she could have continued
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working had she torn the rotator cuff in the incident lifting the drinks. However, Dr. Dickerson stated that the claimant might have had bursitis or an impingement-type injury that then developed into a tear as she continued to work. The ALJ found that the lifting incident resulted in one of those conditions and the tear then developed as she continued to lift at work.
Based upon his factual findings, the ALJ determined that the claim was compensable and he ordered temporary total disability benefits beginning on June 26, 2006, and continuing until terminated according to applicable law. He also denied the respondent’s claim for a penalty based upon the claimant’s failure to report the injury in a timely manner.
The respondent appealed the ALJ’s order and argues that its right to due process was violated by the ALJ’s adjudication of the claim as an occupational disease without notice, that there was insufficient evidence to support the ALJ’s finding of causation, and that the ALJ erred in refusing to impose a penalty based on the claimant’s failure to report the injury in a timely manner. We are not persuaded that the ALJ erred.
I.
The respondent first contends that no notice was provided that the claimant sustained an occupational disease until after the evidentiary portion of the hearing closed and the parties were presenting argument. The respondent argues that the claimant’s “transition” to the theory that she sustained an occupational disease was made during closing argument and deprived the respondent of the opportunity to conduct discovery, to investigate the claim, and to examine and cross-examine witnesses. However, in our view, the respondent was provided adequate notice of the theory of the claimant’s case at the hearing and waived any objection to the notice not being provided prior to that time.
First, we disagree with the claimant’s argument that he was provided insufficient notice that the claimant was claiming benefits based upon an occupational disease. It is certainly true that a party has the right to procedural due process, which generally requires that the party be provided with notice and an opportunity to be heard. Avalanche Industries, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 06CA0716, March 27, 2007). The essence of procedural due process is that the proceedings be fundamentally fair. City and County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). Due process also requires that a party have advance notice of the issues to be adjudicated at the hearing. Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987). Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be
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adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).
Moreover, matters relating to procedure and that are not of a jurisdictional character may be waived, either expressly or impliedly by conduct that manifests an intent to relinquish the right or that is inconsistent with its assertion. Industrial Commission v. Employers’ Liability Assurance Corp., 78 Colo. 267, 241 P.2d 729 (1925) Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Colorado Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966). We have previously held that notice that the claimant is claiming benefits based upon an occupational disease may be waived. E.g., Walton v. Beef City, Inc., W.C. No. 2-234-788 (September 11, 1995); Lopez v. Stresscon Corp., W.C. Nos. 4-198-942, 4-198-943 (October 1995). In general, if a party does not object to consideration of an issue and litigates it through presentation of evidence and cross-examination of adverse witnesses, a waiver may be found. Robbolino v. Fisher-White Contractors, Inc., 738 P.2d 70 (Colo.App. 1987).
Here, we agree with the claimant’s argument that the respondents received notice at the commencement of the hearing that an alternate theory of recovery was that the claimant had sustained an occupational disease. In this respect, we note that the record transmitted to us contains a completed form entitled “Disability Notice: Claim for Weekly Disability Benefits,” which apparently serves as the written claim for compensation for employees of this employer. We note that the form contains the question whether the claim was “for an accident,” to which the claimant responded “no” and then explained that she was injured “lifting heavy items from one cart to another.” Claimant’s Exhibit 1. In any event, the hearing was held pursuant to the claimant’s application for a hearing, which is a form promulgated by the Division and which contains issues to be considered at the hearing that may be “checked.” The claimant’s application for hearing indicated that “compensability” was such an issue to be tried at the hearing, and we note that the form does not contain any more specific designation than the general issue of “compensability,” nor does it require notice that benefits are being claimed based on an injury as opposed to an occupational disease. Of course, discovery is available to either party, either pursuant to agreement of the parties or an order of an ALJ. Section 8-43-207(1)(e), C.R.S. 2006. However, the record does not disclose the nature and extent of the discovery that was conducted here, although the case information sheets filed by both parties’ indicate that discovery was either completed or was not conducted. Similarly, the record does not disclose the extent or nature of the investigation conducted by the insurer prior to denying the claim. See e.g., Traveler’s Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985); Burgess v. Mid-Century Insurance Company, 841 P.2d 325 (Colo.App. 1992) (insurer must have a reasonable basis for denial of a claim).
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Notwithstanding that we cannot discern from the record whether the insurer’s investigation, either through discovery or through informal inquiry, revealed the factual details of the claim, at the commencement of the hearing the claimant’s attorney explained the facts upon which he sought recovery of benefits. The ALJ inquired of the claimant’s attorney regarding the date of the claimant’s injury and he responded by requesting an opportunity to explain the factual basis of the claim. Claimant’s counsel then stated:
The Claimant has been a checker for King Soopers for roughly 15 years. Some time she believes in early April, maybe April 1st of last year, of 2006, while she was checking items she lifted a heavy object from one grocery cart to the next and felt a pull in her shoulder. She continued working up until June 25th, and as she continued working she kept doing her job and things got worse. So, if there’s a date of injury, the exact date is uncertain. We believe it’s around April the 1st, 2006, but in any event the last time the Claimant actually worked and performed her duties, which we believed subsequently probably aggravated her condition, was up until June 25th.
Tr. at 4. In our view this recitation is sufficient to notify the respondent that one possible theory of recovery upon which the claimant was proceeding was that she had sustained an occupational disease. Moreover, the factual record developed during the hearing was consistent with this theory. The claimant testified that she was performing her job as a checker when she lifted a 24 pack of drinks and felt a “pull” in her shoulder. Tr. at 9. She continued working for several months after that incident, during which her shoulder condition “got worse.” Tr. at 10, 21. Dr. Dickerson then testified and was asked by the respondent’s attorney whether it was “medically probable” that the claimant tore her rotator cuff in the incident where she felt a pull in her shoulder. The doctor responded that she did not have sufficient information and that it was “difficult for [her] to say.” Tr. at 70. The doctor then volunteered that the claimant might have “developed a more bursitis or, you know, impingement type picture with that pull initially in April, and she possibly could have developed a tear if she continued to work with it over time. . . .” Tr. at 70-71. She then opined that continuing to work could have worsened the claimant’s condition “after the pull.” Tr. at 72. Finally, the respondent concedes that the claimant’s attorney articulated this theory during his closing remarks.
At no point in the proceedings did the respondent object to the claimant’s attorney’s description of the case as one involving a gradual development of the claimant’s condition after the initial incident, nor did the respondent express surprise at
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that theory or inquire regarding whether the claimant was claiming that she sustained an occupational disease. Nor did the respondent seek a continuance, further discovery, clarification of the claimant’s legal theory or an opportunity to present rebuttal evidence necessitated by the respondent’s lack of preparedness to defend against the theory that her condition developed gradually. Rather, the respondent presented its case, which included lay and expert testimony, cross-examined the claimant, and presented legal argument. Indeed, the respondent’s principal defense appears to have been that the claimant’s testimony and evidence was internally inconsistent, of little probative weight, and rebutted by testimony from the respondent’s witnesses. Essentially, the respondent’s attorney argued that given the factual record the claimant had failed to carry her burden of showing entitlement to benefits. He stated in his closing argument: “Who knows what happened to Ms. Digregorio. I don’t know. She’s supposed to report work injuries. She’s supposed to prove her entitlement to benefits. She hasn’t met her burden, unless we are inclined to believe this story that other persons to whom she claims she reported are simply lying.” Tr. at 83. By this point in the proceedings the respondent was aware that the claimant contended that her condition worsened following the initial “pull” in her shoulder, and that she attributed that worsening to her continued work. The respondent, however, expressed no surprise at this contention, but argued instead that the claimant’s testimony should be rejected as insufficiently persuasive to carry her burden.
Under these circumstances, we conclude that the respondent waived any objection based upon the lateness of the notice that the claimant was seeking benefits based upon the factual assertions that her condition was caused by her continued work after the initial incident.
II.
The respondent next contends that the record does not contain substantial evidence supporting the ALJ’s conclusion that the claimant sustained an occupational disease. Again, we disagree with the respondent’s argument.
Section 8-40-201(14) defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
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The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under §8-40-201(14), C.R.S. 2005 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought. Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). 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. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
In our view the evidence that the claimant initially felt a “pull” in her shoulder when she lifted the case of drinks and that her condition gradually worsened as she continued to work over the ensuing weeks supports the ALJ’s conclusion that she sustained an occupational disease. Specifically, the ALJ found that the initial incident lifting the drinks caused bursitis or “an impingement type condition,” and that the repetitive nature of the lifting over the following weeks caused a tear of her rotator cuff. See Findings of Fact, Conclusions of Law, and Order at 4, ¶ 3. As noted above, this was precisely Dr. Dickerson’s testimony, which provides unquestioned support in the record for the ALJ’s factual finding. Moreover, this finding supports the conclusion that the claimant sustained an occupational disease caused by her continued exposure to repetitive lifting on the job.
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III.
The respondent also argues that the ALJ erred in refusing to impose a penalty for the claimant’s late reporting of her injury or occupational disease. We are unpersuaded that the ALJ erred.
Section 8-43-102(2), provides that:
“Written notice of the contraction of an occupational disease shall be given to the employer by the affected employee or by someone on behalf of the affected employee within thirty days after the first distinct manifestation thereof. . . . Actual knowledge by an employer in whose employment an employee was last injuriously exposed to an occupational disease of the contraction of such disease by such employee and of exposure to the conditions causing it shall be deemed notice of its contraction. If the notice required in this section is not given as provided and within the time fixed, the director may reduce the compensation that would otherwise have been payable in such manner and to such extent as the director deems just, reasonable, and proper under the existing circumstances.”
We have previously held that the determination of the “first distinct manifestation” is subject to the general principle that the time for providing notice of an injury does not begin to run until the claimant, as a reasonable person recognizes the nature, seriousness, and probable compensable nature of the injury. See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Guthrie v. Carpet Mills Outlet Stores, W.C. No. 4-210-005 (September 25, 1995); Row v. Shepard’s McGraw-Hill Inc., W.C. No. 4-180-762 (July 31, 1995). We adhere to our prior conclusions. To recognize the “probable compensable character” of an injury, the claimant must know that the injury is somewhat disabling and must appreciate a causal relationship between the employment and the condition. Temporary disability benefits are payable if the injury causes the claimant to miss more than three shifts from work Cf. City of Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo.App. 2004) (claimant who knows probable compensable nature of injury not required to file claim until injury becomes disabling) City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640
(Colo.App. 1998); Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987).
Because the failure timely to give notice of an occupational disease is an affirmative defense to the respondents’ liability for workers’ compensation benefits, the claimant was not required to prove when she was unaware of the probable compensable nature of the injury. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394
(1977). Rather, the respondents were required to prove that the claimant was aware
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of the probable compensable nature of the injury more than 30 days before the injury was reported. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983) (burden of proof determined by assessing which party would be successful if no evidence were presented; then placing burden of proof on the adverse party).
Whether the respondents sustained their burden of proof was a question of fact for resolution by the ALJ. Here, the ALJ found, with support in the record in the form of the claimant’s testimony, that the claimant first recognized the probable compensable nature of her condition on June 25, 2006, when she first experienced temporary disability resulting from her injury. He further found, again with support in the record, that the claimant reported her injury within thirty days of June 25, 2006. Those findings support the ALJ’s conclusion that penalties for the late reporting of the compensable condition are not appropriate. We are bound by the factual findings and in our view there is no basis to disturb the ALJ’s legal conclusions in this regard.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 27, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
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KING SOOPERS INC, Attn: MELODY AUDI, 5050 SOUTH FEDERAL BLVD, ENGLEWOOD, CO, 80110 (Employer)
DOUGLAS R PHILLIPS PC, Attn: DOUGLAS R PHILLIPS, 155 SOUTH MADISON ST STE 330, DENVER, CO, 80209 (For Claimant)
THOMAS POLLART MILLER LLC, Attn: ERIC J POLLART, 5600 SOUTH QUEBEC ST STE 220-A, GREENWOOD VILLAGE, CO, 80111 (For Respondents)
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