W.C. No. 4-171-210Industrial Claim Appeals Office.
September 15, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which ordered the respondents to pay temporary disability benefits in connection with the claimant’s occupational disease. We affirm.
This matter was previously before us. On February 13, 1995, we reversed the ALJ’s prior order which determined that the respondents are not liable for the claimant’s occupational disease, because the claimant’s “last injurious exposure” to the hazards of the disease occurred during her subsequent employment in New Mexico. Based on In the Matter of the Claim of Garner v. Vanadium Corporation of America, 194 Colo. 358, 572 P.2d 1205 (Colo. 1977), we concluded that the ALJ misconstrued the “last injurious exposure” rule in determining the respondents’ liability.
In Garner, our Supreme Court held that the term “employer” under the predecessor statute to § 8-41-304(1), C.R.S. (1995 Cum. Supp.), means Colorado employer. Consequently, the Garner court held that the “last injurious exposure” rule imposes liability on the Colorado employer in whose employ the claimant is last injuriously exposed to the hazards of the occupational disease, and any subsequent injurious exposure during employment outside Colorado is to be disregarded.
In view of the undisputed fact that the claimant’s last injurious Colorado exposure occurred during her 1992 employment with the respondent-employer, we held that Garner compelled a conclusion that the respondents are liable for the claimant’s occupational disease. Therefore, we reversed the ALJ’s order, and remanded the matter for further proceedings concerning the claimant’s entitlement to benefits.
On remand, the ALJ entered an order dated April 24, 1995, which required the respondents to pay temporary total disability benefits commencing May 16, 1993. The respondents now seek review of that order.
I.
The respondents first argue that they are not liable for the claimant’s occupational disease under the “last injurious exposure rule.” In so doing, the respondents contend that our reading of Garner was overly broad. The respondents also argue that this claim is factually distinguishable from Garner. We reject these arguments.
The analysis we relied upon in reaching our conclusion that the respondents are liable for the claimant’s disease is set forth in detail in our February 13, 1995 order, and is incorporated by reference herein. In pertinent part, we noted that the purpose of the “last injurious exposure rule” is to relieve the claimant of the burden of proving the precise contribution of each injurious exposure to the overall cause of the claimant’s disease. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986); Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978). For this reason, we rejected the respondents’ suggestion that we construe Garner as only disregarding subsequent, out of state exposures which are minor or do not contribute to the claimant’s disability. It follows that Garner is not limited to circumstances where the cause of the claimant’s disability is specifically determined to be the “result of the cumulative exposures” both in and outside Colorado.
We also previously considered and rejected the respondents’ argument that this claim is factually distinguishable from Garner. The respondents’ present argument is not significantly different, and we are not persuaded to depart from our prior conclusions. Therefore, insofar as the respondents request that we reconsider our analysis, we decline to do so.
II.
Alternatively, the respondents argue that the ALJ was precluded from awarding temporary total disability benefits commencing May 16, 1993. In support, the respondents cite the fact that Dr. Brady, the claimant’s primary treating physician, determined the claimant to be at maximum medical improvement (MMI) on December 29, 1992 and released the claimant to return to regular employment without evidence of permanent impairment. The respondents contend that Dr. Brady’s opinion compels a conclusion that the claimant sustained a separate and different occupational disease in New Mexico. We disagree.
The question of whether the claimant’s disability is attributable to the worsening of her occupational disease, or a new injury or disease, is one of fact for resolution by the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we may not interfere with the ALJ’s implicit determination that the claimant did not sustain a new occupational disease as a result of her New Mexico employment, if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Contrary to the respondents’ assertion, the record contains substantial evidence to support the ALJ’s determination. For example, Dr. Brady’s December 1992 and October 1993 reports both diagnosis the claimant’s condition as “cumulative trauma disorder” bilaterally. Further, in his October 1993 report, Dr. Brady’s opines that the claimant had not fully recovered from her carpal tunnel syndrome when he placed her at MMI on December 29, 1992. He also opined that some of the claimant’s 1993 carpal tunnel syndrome problems date back to the claimant’s injurious exposure with the respondent-employer. Therefore, the ALJ could, and did, infer that the claimant’s 1993 disability is causally related to the occupational disease which the claimant reported in 1992, and is the subject of this claim. Lantern Inn v. Industrial Commission, 624 P.2d 929
(Colo.App. 1981) (where there is no direct evidence, the appellate issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances).
The respondents further contend that the claimant’s request for disability benefits subsequent to December 29, 1992, inherently “disputes” Dr. Brady’s determination of MMI. Therefore, the respondents argue that the claimant is required to undergo an independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), prior to a hearing on the claim for temporary disability benefits after December 29. We conclude that the IME provisions do not apply to these circumstances.
Admittedly, temporary disability benefits terminate upon the claimant’s attainment of MMI. Section 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.); Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Furthermore, § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), requires the initial determination of MMI to be made by the “authorized treating physician who has provided the primary care,” and provides that if either party “disputes” that determination, the ALJ is precluded from determining MMI until the claimant undergoes an IME. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). However, the existence of a binding determination of MMI does not preclude a reopening of a claim, nor does it limit the ALJ’s authority to award additional benefits where the claimant suffers a worsening of condition subsequent to MMI. Section 8-43-303 C.R.S. (1995 Cum. Supp.); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988).
Assuming, arguendo, that the claim was closed following Dr. Brady’s determination of MMI, the record reveals that the respondents agreed to voluntarily reopen the claim as a result of mediation on September 15, 1993. Further, the ALJ credited Dr. Brady’s opinion that the claimant suffered a worsening of condition after December 29, 1992, to such an extent that she was no longer at MMI as of May 16, 1993, and has not reached MMI from the worsened condition.
Under these circumstances, the claim for additional benefits does not inherently dispute Dr. Brady’s determination of MMI, and the ALJ’s order does not purport to independently determine whether the claimant was at MMI on December 29, 1992. Rather, the ALJ acknowledges Dr. Brady’s initial determination of MMI, as well as Dr. Brady’s subsequent opinion that the claimant’s condition is no longer at MMI. Under these circumstances, the claimant was not required to complete an IME prior to a hearing on the claim for additional temporary disability benefits, and the absence of an IME did not preclude the ALJ from awarding additional benefits.
The respondents remaining arguments have been considered, and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 24, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 15, 1995 to the following parties:
Liane Donohoe aka Liane Vigil, 6320 Northwind Dr., Colorado Springs, CO 80918
ENT Federal Credit Union, P.O. Box 15819, Colorado Springs, CO 80935
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Paul Feld, Esq., 999 18th St., Ste. 3100, Denver, CO 80202
BY: _______________________