W.C. No. 4-416-288Industrial Claim Appeals Office.
February 14, 2000
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied the claim for benefits based on an occasional disease. The claimant contends the ALJ misapplied the law in finding the claimant’s condition was attributable to hazards to which he was equally exposed outside of employment. The claimant further contends the ALJ’s findings of fact are not supported by the evidence. We set the order aside and remand for entry of a new order.
The claimant was employed as a press operator in the employer’s manufacturing facility. The claimant stated the job required substantial twisting, bending, and lifting sheets of metal weighing up to 25 pounds. The claimant testified that in October 1998, he experienced the gradual onset of low back pain which was associated with his work activities, particularly the twisting. (Tr. p. 8). However, the claimant also admitted that everything he did, including “standing and walking,” caused back pain. (Tr. p. 33).
By February 1999, the claimant’s symptoms had progressed to the extent he was experiencing pain down both of his lower extremities. On March 2, 1999, the claimant was examined by Dr. Bagge, who noted the claimant was suffering from osteogenesis imperfecta (a congenital condition involving brittle bones), and had a history of back pain since an injury at age 13. Dr. Bagge diagnosed a suspected herniated disc impinging on the L5 nerve root, but rendered no definitive opinion concerning the etiology of the claimant’s condition. The claimant was also examined by Dr. White on March 18, 1999. Dr. White noted the claimant traced his symptoms to October 1998, when he awoke with the onset of low back pain. Dr. White also stated the claimant’s work as a press operator “would consistently aggravate his symptoms.” Dr. White diagnosed a probable herniated disc at L5-S1, and he recommended an MRI to confirm the diagnosis
Under these circumstances, the ALJ concluded the claimant’s “symptomatology is not the result of an occasional disease as defined by” § 8-40-201(14), C.R.S. 1999, because the evidence shows the claimant’s “low back condition” comes from “hazards to which he was equally exposed outside his employment.” In support of this determination, the ALJ cited the claimant’s history of osteogenesis imperfecta, the fact that the claimant “lifted his children on a regular basis,” and that everything the claimant did, including walking and sitting, aggravated his symptoms.
The ALJ also found the claimant did not sustain an accidental injury. In support, the ALJ noted the absence of “contemporaneous medical reports” establishing an accidental injury, medical history indicating that the claimant awoke from sleep with symptoms, and the claimant’s failure to consult designated treating physicians.
I.
On review, the claimant contends the ALJ misapplied the law by denying the claim for an occupational disease on the basis that the claimant was equally exposed to the hazards of the disease outside of employment. Relying on Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the claimant argues the finding of an occupational disease is not precluded merely because of a preexisting condition, or because the claimant has been exposed to non-occupational hazards of the disease. Because we agree the ALJ may have misapplied the law, we set the order aside and remand for entry of a new order. Section 8-43-301(8), C.R.S. 1999.
Section 8-40-201(14) defines an occupational disease as one resulting directly from the conditions under which the work was performed, which can be seen to have followed as a natural incident of the work, 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 of the employment.” If the claimant successfully establishes the existence of an occupational disease resulting from the hazards of employment, the respondents bear the burden to establish the contribution of non-occupational causes under the quoted portion of the statute. Cowin Co. v. Medina, 860 P.2d 535
(Colo.App. 1992).
Moreover, the equally exposing stimulus language effectuates the “peculiar risk” test by ensuring that the conditions of employment exposed the claimant to the hazards of the disease in substantially greater measure than persons in employment generally. Anderson v. Brinkhoff, 859 P.2d at 824. However, the statute does not require that the hazardous conditions of employment be the sole cause of the disease or aggravation. Moreover, the statute “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” the compensability of the disease. Instead, the statute ensures that the disease results from a hazard which is occupational in nature, and where exposure to an occupational hazard is not a necessary precondition to development of the disease, “the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.” Id. at 825.
Here, we agree with the claimant that the ALJ’s order reflects a possible misapplication of the law. As we read the order, the ALJ has not determined whether the claimant proved any causal connection between the hazards of his employment (twisting, bending, and lifting), and the development of his back symptoms. Instead, the ALJ appears to have concluded that if such a connection exists, the claimant failed to prove an occupational disease simply because “everything he does,” including non-occupational activities, aggravates his condition. This conclusion represents a misapplication of the law because, as held in Anderson v. Brinkhoff, compensability of an occupational disease is not precluded simply because non-occupational factors contribute to the disease. Moreover, to the extent the claimant proved any causal relationship between the conditions of employment and his back symptoms, the burden shifted to the respondents to apportion disability to nonindustrial factors under the equally exposing stimulus language. Cowin Co. v. Medina, supra.
Moreover, we agree with the claimant that the ALJ’s finding that the claimant “lifted his children on a regular basis” is not supported by substantial evidence in the record. Although the claimant testified he has two small children, we find no evidence that he lifted them on a regular basis. (Tr. p. 32). Thus, this finding affords no basis for concluding the claimant was exposed to the hazards of the alleged disease outside of employment, and it is set aside.
We have considered the respondents’ argument that the ALJ found no relationship between the claimant’s employment and the alleged occupational disease. Although we agree with the respondents that there is evidence in the record which would support the conclusion that the claimant failed to prove the requisite causal relationship, the ALJ’s Conclusions of Law do not indicate that this was the basis of the order.
Under these circumstances, the matter must be remanded for entry of a new order. On remand, the ALJ shall determine whether the claimant suffers from a disease, and if so, whether it was caused or aggravated by the hazards of his employment. Section 8-40-201(14). If the ALJ finds the claimant is suffering from an occupational disease which was to some extent caused or aggravated by the hazards of employment, and to some extent caused or aggravated by nonindustrial factors, the ALJ shall apply Anderson v. Brinkhoff, and Cowin Co. v. Medina, to determine whether the respondents are entitled to a reduction in their liability. In reaching this result, we should not be understood as expressing any opinions concerning the factual issues which the ALJ must now resolve.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 2, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
Copies of this decision were mailed February 14, 2000
to the following parties:
Robert D. Fish, 445 W. North St., Cortez, CO 81321-3124
Tuffy Security Systems, 25733 Road H, Cortez, CO 81321-9119
Reliance National Indemnity, Gallagher Bassett, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Kathleen M. North, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy