W.C. Nos. 4-311-545, 4-379-390, 4-361-456Industrial Claim Appeals Office.
October 30, 2001
FINAL ORDER
Respondent BTG, Inc./Delta Research Division (Delta), and its insurer, Zurich American Insurance (collectively Zurich respondents), seek review of an order of Administrative Law Judge Mattoon (ALJ) which held them liable for the claimant’s occupational disease. The Zurich respondents dispute the sufficiency of the evidence to support the ALJ’s findings that the claimant sustained a compensable occupational disease, and that the claimant sustained a last injurious exposure to and substantial permanent aggravation of the disease while employed by Delta. These respondents also argue they are not liable for medical expenses incurred prior to the time the claimant reported the disease to Delta. We dismiss the petition to review without prejudice as it pertains to medical benefits, and otherwise affirm the order.
This matter was before us previously. In an Order dated August 4, 2000, we dismissed the Zurich respondents’ petition to review the ALJ’s order dated August 31, 1999. We ruled the August 31 order was not final and reviewable because the claimant’s average weekly wage had not been determined, and because there was no award of specific medical benefits. The parties subsequently stipulated to the claimant’s average weekly wage, and on November 13, 2000, the ALJ entered an order directing the Zurich respondents to pay temporary disability benefits at the rate of $336 per week commencing October 2, 1997. The ALJ’s November 13 order incorporated the order of August 31, 1999, and the Zurich respondents have again appealed.
In the August 31 order the ALJ found the claimant was employed by respondent Loral Range and Space Corporation (Loral), as insured by Continental Casualty/CNA, from April 1995 to April 1996. Loral was then taken over by respondent Lockheed Martin (Lockheed), as insured by respondent CIGNA. The claimant was employed by Lockheed from April 1996 through September 1996, when he was laid off. Subsequently, the claimant was employed by Delta from November 1996 until October 2, 1997. All three jobs required “constant use of Claimant’s upper extremities in the manipulation of computer input devices consisting of a tablet, puck and keyboard.” (Finding of Fact 2 August 31, 1999).
In April 1996, while still employed by Loral, the claimant experienced numbness and tingling in his left hand, and soon thereafter experienced pain in his arm, elbow and shoulder. In August 1996, while employed by Lockheed, he began to experience similar symptoms in his right upper extremity. Commencing in April 1996, the claimant was treated conservatively by Dr. Hall. In the fall or summer of 1997, while the claimant was employed by Delta, his symptoms significantly worsened, and the claimant began to experience pain in the low back and lower extremities. The claimant quit working at Delta on October 1, 1997 because he was no longer able to tolerate the pain.
The ALJ found the claimant suffers from a “work-related injury resulting in cumulative trauma disorder, myofascial dysfunction and entrapment neuropathies of the upper extremities,” and this condition “began during employment with Loral.” Further, the ALJ found the condition “expanded” during the claimant’s employment stat Lockheed and Delta, and the “most serious exposure and permanent aggravation occurred during the employment at Delta.” Under these circumstances, the ALJ ordered the Zurich respondents to pay temporary total disability benefits commencing October 2, 1997.
I.
On review, the Zurich respondents first contend the ALJ erred in finding the claimant sustained a compensable occupational disease caused by “cumulative trauma” sustained during his employment. Instead, these respondents argue the ALJ was compelled to credit the testimony of their expert that the claimant suffers from generalized fibromyalgia which cannot be associated with the claimant’s employment. At a minimum, the respondents argue the ALJ’s findings of fact are insufficient to support appellate review because they do not cite any medical testimony, and do not discuss the opinions of their medical expert. We perceive no error.
The claimant was required to prove an occupational disease which was directly and proximately caused by the conditions of his employment, and the question of whether the claimant proved causation is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Because the issue is factual in nature, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, the credibility determinations, and the plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. We specifically note the claimant is not required to prove causation by medical evidence. However, where such evidence is introduced, its weight and credibility are matters for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Further, when reviewing an ALJ’s order, we do not hold the ALJ to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning the evidence which she finds dispositive, and she need not address evidence which she considers to be unpersuasive. Further, we may consider findings which are implicit in the order Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
Here, substantial evidence supports the ALJ’s finding the claimant proved the occupational disease of cumulative trauma disorder caused by sustained repetitive motion required in his job. Although the ALJ did not mention the claimant’s treating physician by name in Finding of Fact 8, she implicitly credited his opinion that the claimant suffers from a cumulative trauma disorder which includes entrapment neuropathies and myofascial pain. Dr. Hall expressly related the claimant’s condition to the circumstances of his employment since the original report of April 17, 1996. This opinion is corroborated by a report of Dr. Griffis, dated November 6, 1996, stating the claimant has “electrodiagnostic evidence of bilateral carpal tunnel syndromes.” Further, the claimant’s testimony, which the ALJ found credible, connects the onset of his symptoms to the duties of his employment. Consequently, the ALJ’s findings are sufficient to indicate the basis of the order, and the record contains substantial evidence to support the finding the claimant proved an occupational disease caused by his employment.
It is true the Zurich respondents’ expert proffered a contrary explanation of the claimant’s condition and disputed the opinions of Dr. Hall. However, the weight and credibility to be afforded the expert’s testimony were matters for the ALJ, and the findings are sufficient for us to conclude the ALJ implicitly rejected this testimony. Insofar as the respondents make other arguments, they are purely factual in nature and we find them to be without merit.
II.
The Zurich respondents next contend the record does not support the ALJ’s findings that the claimant sustained a last injurious exposure and substantial permanent aggravation of the occupational disease while employed by Delta. According to these respondents, the record does not demonstrate the claimant’s condition substantially worsened while he was at Delta. We disagree.
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 rule 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.” Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986); Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, as the ALJ found, the record demonstrates the claimant’s duties at all three employers were essentially the same. Therefore, the ALJ logically inferred that because the claimant’s repetitive activities were sufficient to cause the disease while he was employed at Loral, the same activities performed at Delta would have been sufficient to cause the disease over a prolonged period of time. Therefore, the record supports the ALJ’s finding the claimant sustained a last injurious exposure to his disease while employed at Delta. Royal Globe Insurance Co. v. Collins, supra.
Further, substantial evidence supports the ALJ’s finding that the claimant sustained a substantial and permanent aggravation of his condition while employed at Delta. The claimant testified that all of his symptoms increased in frequency, duration, and severity while employed by Delta. (Tr. pp. 32-34, 70-71). Further, the claimant was able to continue the duties of his employment until he was forced to quit Delta because of increasing symptoms in October 1997. Finally, Dr. Healey opined that Delta “is responsible for [the claimant’s] current problems as the last and most serious exposure and permanent aggravation has occurred while he was employed” at Delta. (Healey report October 27, 1998). The ALJ implicitly credited Dr. Healy’s opinion by using his exact words in paragraph 8 of the August 31 order. For these reasons, we reject the Zurich respondents’ argument that the evidence does not support a finding of substantial permanent aggravation while the claimant was employed by Delta. Cf. Monfort, Inc. v. Rangel, supra.
III.
The Zurich respondents’ final argument is that the ALJ erred in holding them liable for medical benefits incurred by the claimant prior to the time he reported the injury to Delta. However, the ALJ’s order of November 13, 2000, does not contain an award or denial of any specific medical benefits, nor does the parties’ stipulation address specific medical benefits. Consequently, for the reasons stated in our prior Order, we conclude the ALJ’s November 13 order is not final and reviewable with respect to the issue of medical benefits. Section 8- 43-301(2), C.R.S. 2001; Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) (order may be final and reviewable concerning one issue but interlocutory with respect to another issue).
IT IS THEREFORE ORDERED that the Zurich respondents’ petition to review the ALJ’s order dated November 13, 2000, is dismissed without prejudice insofar as it concerns the issue of medical benefits.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise 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 October 30, 2001 to the following parties:
James Flannes, 5335 Mule Deer Dr., Colorado Springs, CO 80919
Loral Space and Range, Thomas O. McBride, Esq., 1410 Grant St., #C-206, Denver, CO 80203
Lockheed Martin, P. O. Box 33023, Lakeland, FL 33807
BTG Inc./Delta Research, 3877 Fairfax Ridge Rd., Fairfax, VA 22030
Rillia Green, Continental Casualty Insurance/CNA, P. O. Box 5408, Denver, CO 80217
CIGNA Insurance, P. O. Box 2941, Greenwood Village, CO 80150
Kevin Krayna, Zurich American Insurance/American Guarantee Liability Company, P. O. Box 370308, Denver, CO 80237
John V. FitzSimons, Esq., P. O. Box 2940, Colorado Springs, CO 80903 (For Claimant)
Raymond A. Melton, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents BTG, Inc./Delta Research Division and Zurich American Insurance/American Guarantee Liability Company)
Thomas O. McBride, Esq., 1410 Grant St., #C-206, Denver, CO 80203 (For Respondents Loral Space and Range and Continental Casualty Insurance/CNA)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents Lockheed Martin and CIGNA Insurance)
BY: A. Pendroy