W.C. No. 4-429-968Industrial Claim Appeals Office.
November 20, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Corchado (ALJ) insofar as it denied temporary total disability benefits commencing March 31, 2000. The claimant argues the ALJ erroneously applied principles announced in the PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), and incorrectly found the claimant sustained a “last injurious exposure” and “substantial permanent aggravation” of her occupational disease in subsequent employment. The claimant also challenges the ALJ’s determination that the issue of average weekly wage (AWW) was “reserved” for future determination. We set aside the order insofar as it denied temporary total disability benefits and remand for a new order on this issue. We also conclude there was no reversible error involving “reservation” of the issue of AWW.
The ALJ’s pertinent findings of fact may be summarized as follows. In January 1999 the claimant sustained a compensable occupational disease affecting her left wrist and upper extremity. The disease was caused by repetitively lifting heavy bags of laundry. The claimant underwent surgery in June 1999 to repair the condition. The claimant later developed symptoms of depression.
In September 1999, one of the treating physicians placed the claimant at maximum medical improvement (MMI) for the wrist condition, and assessed a 10 percent upper extremity impairment, which converted to a 6 percent whole person impairment. The treating psychologist opined the claimant reached MMI for the depression on October 27, 1999. (Tr. June 6, 2000, p. 78). However, the claimant underwent a Division-sponsored independent medical examination (DIME), and in February 2000 the DIME physician opined the claimant had not reached MMI for the “situational depression” caused by the injury, and should receive additional treatment.
In July 1999 the respondent employer (Sno-White) offered, and the claimant accepted, office work which was within the claimant’s physical restrictions. The claimant continued performing this work until November 15, 1999, when she quit for reasons which the ALJ found were caused by the injury-related depression. (Finding of Fact 18). Thereafter, the claimant obtained employment as a bartender at the Frontier Inn (Frontier). The ALJ found the claimant held this employment on a part-time basis “until December 1999, when she became full-time.” This employment required “repetitively pouring beers, picking up beer mugs, opening beer bottles and cleaning.” (Finding of Fact 19). The ALJ concluded the claimant “stopped working at Frontier” on March 30, 2000, following a “fight with her boss,” and the claimant failed to prove the work-related injury contributed to the termination. (Finding of Fact 25).
The respondents applied for a hearing to overcome the DIME physician’s opinion the claimant did not reach MMI. The claimant added the issues of medical benefits, AWW, and temporary disability benefits commencing February 12, 1999. The ALJ concluded the respondents failed to overcome the DIME physician’s opinion concerning MMI by clear and convincing evidence.
The ALJ further found the claimant’s employment at Frontier caused a “last injurious exposure” and “substantial permanent aggravation of her wrist condition.” (Finding of Fact 19; Conclusion of Law 6). Under these circumstances, the ALJ determined the claimant’s employment at Frontier constituted “an efficient intervening cause between the Claimant’s left wrist injury with the Respondent-Employer and her left wrist injury after November 15, 1999,” and, therefore, the respondents are not liable for temporary total disability benefits after March 30, 2000. However, the ALJ awarded continuing temporary partial disability benefits because the claimant “has never been placed at MMI for [the psychological] part of the injury and no intervening event occurred to break the causation chain for” temporary partial disability. (Conclusion of Law 7).
I.
The claimant contends the ALJ erred in denying temporary total disability benefits commencing March 31, 2000. The claimant argues the evidence establishes she was not at fault for her termination at Frontier, and in any event the subsequent wage loss was to some degree caused by the occupational disease. Thus, the claimant argues the ALJ’s order is contrary to the holding in PDM Molding Inc. v. Stanberg, supra. The claimant also argues the evidence does not support the ALJ’s finding the claimant sustained a last injurious exposure and substantial permanent aggravation of her condition while employed by Frontier. Because we conclude the evidence does not support one of the ALJ’s pertinent findings concerning last injurious exposure and substantial permanent aggravation, and because the ALJ misapplied the law, we remand for entry of a new order on temporary total disability benefits. Section 8-43-301(8), C.R.S. 2001.
Section 8-41-304(1), C.R.S. 2001, 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 the employee was last exposed, “shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.” The last injurious exposure element focuses on the concentration of the exposure to the hazards of the disease, and requires that the concentration have been sufficient to cause the disease in the event of prolonged exposure. In contrast, the substantial permanent aggravation element concerns the effect of the exposure and requires that it be “substantial and permanent.” The question of whether these elements have been shown is essentially one of fact for determination by the ALJ. Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986); Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Significantly, § 8-41-304(1) creates a rule of apportionment of full liability for occupational diseases among employers and insurers who could potentially be liable for the claimant’s occupational disease Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). The purpose of the statute is to relieve the claimant of the difficult burden of proving the extent to which each of the successive employers caused the disability. University Park Care Center, ___ P.3d ___ (Colo.App. No. 4-022-733, July 19, 2001); Robbins Flower Shop v. Cinea, supra. Indeed, there is no requirement that the subsequent employment play a causative role in the disease to establish a last injurious exposure and substantial permanent aggravation. Monfort, Inc. v. Rangel, supra.
Here, the ALJ’s order appears to confuse the concepts of “efficient intervening cause” with the principles embodied in § 8-41-304(1). If the claimant sustained a “last injurious exposure” and “substantial permanent aggravation” of her occupational disease while employed by Frontier, the legal consequence of the statute would be to place liability for the claimant’s temporary disability [and other compensation] benefits entirely on Frontier and its insurer, while relieving the respondents [Sno-White and Pinnacol] of any liability for such benefits. Royal Globe Insurance Co. v. Collins, supra. This would be true without regard to whether the claimant’s duties at Frontier could be considered an “intervening cause” of the disease. Monfort, Inc. v. Rangel, supra.
Thus, the question becomes whether the ALJ properly relieved Sno-White and Pinnacol of liability for temporary total disability benefits because the evidence supports the findings that the claimant sustained a last injurious exposure and substantial permanent aggravation of her disease while employed at Frontier. As the claimant argues, the record does not support Finding of Fact 19 insofar as it states the claimant worked “full-time” at Frontier beginning in December 1999. To the contrary, the only evidence in the record indicates the claimant worked at Frontier for only two days per week. (Tr. October 11, 2000, pp. 56, 109, Report of Dr. Swarsen, May 4, 2000).
The erroneous finding is not harmless. The number of hours the claimant worked at Frontier is relevant in determining whether the claimant sustained a last injurious exposure in that employment. The number of hours worked, and the frequency of the work, are relevant when considering whether the claimant was exposed to a “concentration of the hazard” (repetitive wrist activity) sufficient to have caused the disease in the event of prolonged exposure. This finding may also be relevant in determining the probability that the claimant’s exposure at Frontier caused a substantial and permanent aggravation of the claimant’s disease. Because we cannot ascertain how the ALJ would have assessed the remaining evidence absent the incorrect finding, the matter must be remanded for entry of a new order concerning whether or not the claimant sustained a last injurious exposure and substantial permanent aggravation of her occupational disease while employed by Frontier. In light of this determination, we need not reach the claimant’s remaining arguments concerning whether or not the claimant sustained a last injurious exposure and substantial permanent aggravation.
We have considered the respondents’ assertion that the ALJ’s finding of a last injurious exposure and substantial permanent aggravation at Frontier does not constitute a final order. However, the effect of the ALJ’s finding is to deny temporary disability benefits commencing March 31, 2000, because the ALJ concluded there was an “intervening event” which exempts Sno-White and Pinnacol from any liability for these benefits. Consequently, the order is final for purposes of §8-43-301(2), C.R.S. 2001.
We do not reach the issue of whether the ALJ’s findings would support an award or denial of temporary total disability benefits following the claimant’s separation from Frontier. Although the ALJ entered various findings of fact which appear relevant to determining whether the claimant was “at fault” for the loss of employment with Frontier, and whether the post-separation wage loss was to some degree caused by the injury, we do not understand the ALJ to have predicated the denial of benefits on a PDM analysis. Rather, the denial of benefits was based on the ALJ’s finding that the employment at Frontier resulted in an “intervening” injury which severed the causal relationship between the January 1999 occupational disease and the wage loss after March 30, 2000. If, on remand, the ALJ determines there was not a last injurious exposure and substantial permanent aggravation of the occupational disease while the claimant was employed at Frontier, the ALJ shall enter specific findings of fact and conclusions of law determining whether or not, under PDM, the claimant is entitled to temporary total disability benefits commencing March 31, 2000.
II.
The claimant next contends that ALJ erred in determining the issue of AWW was “reserved” for future determination. The claimant argues that during the course of the hearings the ALJ ruled the issue of AWW was not properly before him, and sustained an objection to the presentation of evidence on this issue. Therefore, the claimant argues the respondents are bound by the admitted AWW unless and until they seek to withdraw the admission and are granted prospective relief following a hearing. Although we generally agree with the claimant’s analysis, any error is harmless.
Although the claimant initially listed the issue of AWW in the response to application for hearing, neither party requested the ALJ to consider AWW when the issues were identified and limited at the commencement of the hearing. Further, as the claimant points out, the ALJ subsequently sustained an objection to evidence on the issue of AWW because the issue was not before him. (Tr. July 25, 2000, p. 45). Under these circumstances, the claimant would be denied due process if the admitted AWW was altered without affording the claimant the opportunity for a further hearing. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
Because the issue of AWW was not before the ALJ, the claimant correctly argues that the respondents are bound by the admitted AWW until such time as they obtain a hearing on the issue of AWW and an ALJ issues an order permitting them to alter the AWW. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990). Further, any order altering the average weekly wage would be prospective only. Section 8-43-203(2)(d), C.R.S. 2001; Pacesetter Corp. v. Collett, ___ P.3d ___ (Colo.App. No. 4-414-586, May 10, 2001); HLJ Management Group, Inc. v. Kim, supra.
Thus, we agree with the claimant that any payments of temporary partial or temporary total disability benefits must be based on the admitted AWW. However, the ALJ did not err in holding that the respondents have the right to seek an alteration of the AWW in the future, and resolution of that issue was properly “reserved.”
IT IS THEREFORE ORDERED that the ALJ’s order dated January 7, 2001, is set aside insofar as it denied temporary total disability benefits commencing March 31, 2000. Concerning this issue, 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 November 20, 2001 to the following parties:
Daunya Drake, 6990 W. Cedar, Apt. 309, Lakewood, CO 80232
Sno-White Linen and Uniform Rental, Inc., Attn: Colleen, P. O. Box 10162, Denver, CO 80250-1621
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Erica West, Esq., 837 E. 17th Ave., #102, Denver, CO 80218 (For Claimant)
Craig R. Anderson, Esq., 101 N. Tejon St., #410, Colorado Springs, CO 80903
BY: A. Pendroy