W.C. No. 4-416-288Industrial Claim Appeals Office.
August 29, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which found the claimant sustained a compensable occupational disease as defined by § 8-40-201(14), C.R.S. 1999. The respondents contend the ALJ’s findings of fact do not support a determination that the claimant’s disease was related to the employment, or that the disease was occasioned by the nature of the work. Further, the respondents contend the ALJ misapplied the burden of proof in finding the respondents failed to demonstrate the contribution of non-occupational factors to the claimant’s disease. We affirm.
This matter was before us previously. In our Order of Remand dated February 14, 2000, we directed the ALJ to determine whether the claimant is suffering from an occupational disease caused or aggravated by the hazards of his employment, and, if so, whether or not the respondents are entitled “to a reduction in their liability” based on the contribution of non-occupational factors. Our order contains an extensive statement of the facts which we will not repeat here.
Suffice it to say that in the order after remand, dated April 4, 2000, the ALJ largely incorporated the findings of fact contained in the prior order of September 2, 1999. Specifically, the ALJ noted the claimant’s testimony that his low back pain was not triggered by any specific incident “other than repetitive use of his low back for an extended period of time.” The ALJ also concluded “that the lifting, bending, twisting, and standing required by the claimant’s job aggravated his low back condition and that his low back symptomatology qualifies as an occupational disease.” The ALJ further determined the respondents failed to carry their burden of proof to establish the contribution of non-occupational factors to the claimant’s disease. Thus, the ALJ awarded temporary partial disability benefits without apportionment.
I.
On review, the respondents contend the ALJ failed to make any findings of fact establishing a causal relationship between the employment and the alleged occupational disease. Further, the respondents argue the claimant failed to prove that exposure to the hazards of the disease was greater in his employment than it was outside of the employment. We disagree with these arguments.
Section 8-40-201(14) defines an occupational disease as one resulting directly from the employment or the conditions under which the work was performed, which is a natural incident of the work, can be fairly traced to the employment as a proximate cause, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.” The question of whether the claimant proved a causal relationship between the employment and the disease is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. When applying this standard of review, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Section 8-43-301(8), C.R.S. 1999; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers to be dispositive of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The respondents’ argument notwithstanding, we have no trouble ascertaining the basis of the ALJ’s finding of a causal relationship between the employment and the occupational disease. The claimant testified that his work required substantial twisting bending and lifting. Although the claimant had experienced periods of back pain prior to commencing work for the employer in June 1998, the pain became continuous beginning in October 1998. The claimant stated that it was “mostly the twisting was what aggravated me the most, lifting of the sheet, and then twisting when I had the sheet metal in my hands seemed to do the most damage.” He went on to state that it was “the bending and the lifting, twisting” which hurt him. (Tr. p. 8). The ALJ implicitly credited the claimant’s testimony, and found it persuasive evidence concerning the cause of the claimant’s condition. We may not interfere with the ALJ’s decision to credit the claimant’s testimony insofar as it related to the issue of causation Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Neither are we persuaded the claimant failed to satisfy the “peculiar risk” test described in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). Here, the ALJ found that the claimant’s occupational disease involved the “aggravation” of a preexisting low back problem. Since the claimant’s occupational exposure was not a necessary prerequisite to the development of the disease, the “peculiar risk” test “does not invite a weighing of the various hazards to which the worker has been exposed throughout his lifetime — some occupational, some not — in determining whether a particular disease is occupational.” Rather, the claimant establishes an occupational disease “to the extent that the occupational exposure contributed to the disability.” Id. at 825; Doughty v. Western Dairymen Coop, Inc., W.C. No. 4-206-188
(March 5, 1998).
The ALJ was persuaded the claimant’s occupational exposure aggravated the disease and contributed to his disability. This conclusion was supported by the claimant’s testimony concerning the onset of his pain and its association with the activities of employment. Moreover, two physicians restricted the claimant from performing activities regularly associated with the employment. The ALJ could logically infer that the disability was caused by the circumstances of the employment since the claimant was not disabled before the occupational exposure.
II.
The respondents next contest the ALJ’s April 4 order insofar as it held the respondents failed to carry the burden of proof to apportion claimant’s disability to “non-industrial factors.” Although the respondents recognize the ALJ correctly applied the burden of proof as set forth in Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992), the respondents argue Cowin was wrongly decided because it relies on an interpretation of § 8-40-201(14) which was “reversed” in Anderson v. Brinkhoff. The respondents also argue Cowin is inconsistent with Anderson because Anderson
held that the purpose of the equally exposing stimulus rule is to make it “harder to prove an occupational disease.” We are not persuaded.
Initially, we note that no published decision of the Court of Appeals or the Supreme Court expressly overrules Cowin Co. v. Medina insofar as it holds the claimant “does not have the initial burden of establishing that there was no non-industrial contributor to the diseased condition or, if such a contributor exists, the extent of its contribution.” 860 P.2d at 537. Consequently, we consider Cowin to be binding precedent which we are obligated to follow. C.A.R. 35(f). Indeed, the Court of Appeals itself continues to rely on Cowin as authority for the proposition that “the employer bears the burden of proving grounds for apportionment.” See Absolute Employment Services v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999).
Moreover, we disagree with the respondents’ assertion tha Cowin relied on an interpretation of § 8-40-201(14) which was “reversed” by Anderson. To the contrary, Cowin expressed the view that the respondents carry the burden of proof concerning apportionment even if a court applies the rule announced in Masdin v. Gardner-Denver-Cooper Industries Inc., 689 P.2d 714 (Colo.App. 1984), the rule adopted in Anderson. This is true because, even under Masdin, allocation of the burden of proof depends, in part, on which party would prevail if no proof were offered on a particular point. The Cowin court reasoned that if the evidence “established all of the definitional elements under §8-40-201(14), but there was no evidence as to whether there was also a non-occupational cause of the disease, claimant would surely prevail, whether it be Masdin or the statute that is to be considered.”
We perceive nothing in Anderson as repudiating the rule that if the claimant is successful in establishing that the conditions of employment caused or aggravated a disease, and that the disease caused disability, the respondents then bear the burden of proof to establish the extent to which the disability is caused by non-industrial factors. It follows the ALJ did not misapply the burden of proof, and the record fully supports the determination that the respondents failed to establish grounds for apportionment.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 4, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 1999. 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 August 29, 2000 to the following parties:
Robert D. Fish, 445 W. North St., Cortez, CO 81321
Tuffy Security Systems, 25733 Road H, Cortez, CO 81321-9119
Reliance National Indemnity, Anita Montoya, Gallagher Bassett, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Becky Brown, Cybercomp, 5310 Ward Rd., #G-107, Arvada, CO 80002-1832
Robert C. Dawes, Esq., and Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Kathleen M. North, Esq., and Chris Forsyth, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy