W.C. No. 4-429-968.Industrial Claim Appeals Office.
June 10, 2002.
FINAL ORDER
Sno-White Linen (Sno-White), and its insurer, Pinnacol (collectively respondents), seek review of an order of Administrative Law Judge Friend (ALJ Friend) which awarded temporary total disability benefits commencing March 31, 2000. On review, the respondents contend ALJ Friend’s order is improper because it is based on our Order of Remand dated November 20, 2001, and our order misinterpreted the prior order of ALJ Corchado. The respondents further contend it is necessary to remand the matter to determine the date of “onset of disability” of the claimant’s occupational disease for the purpose of determining whether §8-42-103(g), C.R.S. 2001, and § 8-42-105(4), C.R.S. 2001, apply the claim for temporary disability benefits. We affirm.
Our Order of Remand contains a statement of the facts, and that statement is incorporated herein. In our order, we held that ALJ Corchado confused the concept of “efficient intervening cause” with the concepts of “last injurious exposure and “substantial permanent aggravation” of an occupational disease under § 8-41-304(1), C.R.S. 2001. Next, we held ALJ Corchado’s finding that the claimant worked “full-time” at the Frontier Inn (Frontier), was not supported by substantial evidence in the record. Rather, the evidence demonstrated the claimant worked part-time at Frontier. We concluded this erroneous finding was “not harmless” because it could have influenced ALJ Corchado’s finding that the claimant sustained an “injurious exposure” and a “substantial permanent aggravation” of her left wrist condition while employed by Frontier. Consequently, we remanded the matter with directions to determine as a matter of fact whether the claimant sustained a last injurious exposure and substantial permanent aggravation of her disease while employed by Frontier, and, if not, whether the claim for temporary total disability benefits is barred under principles announced in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
On remand, the matter was considered by ALJ Friend who issued an order on January 15, 2002. The ALJ credited the testimony of Dr. Swarsen that the claimant’s part-time employment as a bartender at Frontier “could possibly” aggravate the claimant’s condition, but probably did not. Specifically, the ALJ credited Dr. Swarsen’s opinion that if the claimant performed bartending work within her restrictions, the work may have exacerbated her left wrist pain, but probably did not aggravate the claimant’s condition.
Under these circumstances, ALJ Friend concluded the claimant did not sustain a last injurious exposure or substantial permanent aggravation of her condition while employed by Frontier. The ALJ further found that, even if the claimant was “at fault” for her termination from employment, the evidence established the wage loss commencing March 30, 2000, was “to some degree” caused by the injury. Thus, applying PDM Molding, the ALJ ordered the respondents to pay temporary total disability benefits commencing March 31, 2000.
I.
On review, the respondents first contend that our interpretation of ALJ Corchado’s order was erroneous because ALJ Corchado correctly found the claimant suffered a separate, compensable “aggravation” of her preexisting occupational disease while employed by Frontier. Consequently, the respondents argue we erroneously remanded the matter for entry of an order based on § 8-41-304(1). We disagree.
Section 8-41-304(1) applies when the claimant sustains an “occupational disease,” and places liability on the employer or insurer where the claimant “was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof.” (Emphasis added). As pointed out in our prior order, the purpose of this statute is to relieve the claimant of the difficult burden of proving the extent to which each of the claimant’s employers caused the disability by exposing the claimant to the hazards of the disease. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). The mere fact that a claimant experiences an “aggravation” of an occupational disease in subsequent employment does not mean the claimant suffers from a “new injury.” Indeed, “aggravation” is now one of the criteria used to assign liability between multiple employers and insurers in occupational disease cases. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Monfort, Inc. v. Rangel, 967 P.2d 122 (Colo.App. 1993).
The respondents’ assertions notwithstanding, ALJ Corchado did not determine the claimant sustained two occupational diseases. ALJ Corchado found the claimant sustained the occupational disease of deQuervain’s tendinitis of the left wrist while employed by Sno-White. (Findings of Fact 3 and 4). ALJ Corchado then found the claimant’s repetitive activities as a bartender were sufficient to “cause injurious exposure that substantially and permanently aggravated [the claimant’s] left wrist condition and was an efficient intervening cause” of the “left wrist condition.” (Emphasis added). (Finding of Fact 19; Conclusion of Law 6).
ALJ Corchado identified only one occupational disease, the “left wrist condition” of deQuervain’s tendinitis and related symptoms. ALJ Corchado did not find the existence of any separate disease process to which the claimant was exposed while employed by Frontier, nor do the respondents point to any evidence of a separate disease process. Consequently, as we held previously, ALJ Corchado’s findings of fact compel the legal conclusion the claimant sustained a single occupational disease, although the claimant was arguably exposed to the hazards of the disease in two employments. It follows ALJ Corchado erred as a matter of law in concluding any “aggravation” of the claimant’s occupational disease while employed by Frontier constitutes an “intervening cause” of the claimant’s disability. Rather, as we held, ALJ Corchado’s findings require the application of the principles set forth in § 8-41-304 (1). See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where reasonable minds can draw but one inference, causation is a question of law for the court).
As the claimant argues, Freeman v. Flatiron Structures, W.C. No. 4-160-751
(November 28, 1995), is not authority to the contrary. That case concerned liability for medical benefits where the claimant was exposed to an occupational disease in multiple employments. See University Park Care Center v. Industrial Claim Appeals Office, supra.
Moreover, we agree with the claimant that ALJ Friend’s findings of fact render the respondents’ argument moot. It is well-established that the question of whether a claimant’s symptoms are the logical and recurrent consequence of a prior industrial injury, or the result of a subsequent “aggravation,” is one of fact for determination by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Here, ALJ Friend credited Dr. Swarsen’s testimony that the claimant’s employment at Frontier may have exacerbated the claimant’s symptoms attributable to the preexisting left wrist condition, but probably did not aggravate the condition. (Finding of Fact 3); (Tr. July 25, 2000, pp. 147, 15151, 167-168). Thus, even if it is theoretically possible for the claimant to have sustained a compensable aggravation of her disease while employed by Frontier, ALJ Friend’s evidentiary findings do not support such a conclusion. Cf. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (where record supported finding that all of claimant’s medical conditions were secondary to the industrial injury, evidence supported conclusion the industrial injury caused permanent total disability even though the claimant’s post-injury employment “triggered” disabling headaches). Because ALJ Friend’s finding is supported by substantial evidence, we may not interfere with it. Section 8-43-301 (8), C.R.S. 2001.
II.
The respondents next contend the ALJ erred in awarding temporary disability benefits. In this regard, the respondents do not dispute ALJ Friend’s finding of fact that, even if the claimant was “at fault” for her separation from Sno-White, the total wage loss commencing March 31, 2000, was to some degree caused by the injury. Neither do the respondents dispute that these factual findings support an award of temporary disability benefits under principles announced in PDM Molding, Inc. v. Stanberg, supra. Instead, the respondents argue ALJ Friend’s order is insufficient to support appellate review because there was no finding concerning the date of “onset of disability” of the claimant’s occupational disease. The respondents assert determination of this issue is necessary in order to decide whether § 8-42-103 (g) and §8-42-104 (5) (termination statutes) apply to this claim. We conclude this issue was not properly preserved for review.
The termination statutes significantly altered the law governing temporary disability benefits as it existed under PDM Molding, Inc. v. Stanberg, supra. See Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002). However, the termination statutes took effect July 1, 1999, and apply to injuries occurring on or after that date. 1999 Colo. Sess. Laws, ch. 90 at 266. As the respondents correctly note, the “date of injury” for an occupational disease is usually the date of “onset of disability.” SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470
(Colo.App. 1994).
However, in this case, the respondents filed an admission of liability which admits the date of the claimant’s occupational disease was January 25, 1999. (See Final Admission of Liability dated January 5, 2000). The respondents never sought to withdraw the admission with respect to the date of the injury. Therefore, the respondents are bound by the admission unless and until they obtain an order permitting them to withdraw the admission. Section 8-43-203(2)(d), C.R.S. 2001; Pacesetter Corp. v. Collett, ___ P.3d ___ (Colo.App. 00CA2099, May 10, 2001).
Further, we agree with the claimant that any argument based on the date of the disease and consequent applicability of the termination statutes was waived by the respondents. We are unable to locate any position statement or point in the record where counsel for the respondents argued the applicability of the termination statutes. At the hearing, the respondents’ principal position was that temporary disability benefits are barred under § 8-42-105(3)(d), C.R.S. 2001, because the claimant quit her job with Sno-White after accepting a written offer of modified employment. Moreover, the brief which the respondents filed prior to our last order expressly states the “claimant correctly notes that this issue [termination from her employment] is subject to the legal analysis set forth in PDM Molding Inc. v. Stanberg.” (Brief In Opposition to Petition to Review, August 20, 2001, at p. 5.). Because the issue of the date of onset of disability and the consequent applicability of the termination statutes was not raised before the ALJ, it may not be raised at this stage of the proceedings. Kuziel v. Pet Fair, Inc., 948 P.2d 103
(Colo.App. 1997); Pacheco v. Roaring Fork Aggregates, 897 P.2d 872
(Colo.App. 1995).
In light of these conclusions, we need not reach the issue of whether the respondents’ failure to appeal ALJ Corchado’s order also precludes consideration of the argument.
III.
The claimant requests attorney fees under § 8-43-301(14), C.R.S. 2001. However, we find the respondents’ brief advances a good-faith argument, particularly with respect to the issue of whether we correctly ruled, in our prior order, that the claimant did not sustain an “intervening injury” while employed by Frontier. Therefore, the request for attorney fees is denied. Cf. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
IT IS THEREFORE ORDERED that ALJ Friend’s order dated January 15, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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 June 10, 2002 to the following parties:
Daunya Drake, 1020 E. Mickey St., Pahrump, NV 89048
Sno-White Linen Uniform Rental, Inc., 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 Anderson, Esq., 101 N. Tejon St., # 410, Colorado Springs, CO 80903
BY: A. Hurtado