W.C. Nos. 4-160-751 4-173-765Industrial Claim Appeals Office.
November 28, 1995
FINAL ORDER
Union Insurance Company, and its insured, Grein Construction Inc. (Grein), seek review of an order of Administrative Law Judge Friend (ALJ) which ordered them to pay medical expenses incurred by the claimant in connection with an occupational disease. We affirm.
These claims involve a contested injury to the claimant’s right upper extremity. The claimant testified that he experienced a gradual onset of symptoms in 1992, during his employment as a grinder for Flatiron Structures (Flatiron). He subsequently reported the injury to Flatiron and was referred for treatment. Claimant returned to light duty work until July 17, 1992, when he was separated from his employment with Flatiron.
The claimant’s next employment began in August 1992 with Grein. The claimant testified that he performed framing duties until April 1993, when he was reassigned to the cement crew. He testified that he continued on the cement crew until May 1993, when he was physically unable to continue, and quit.
The ALJ found that the claimant suffered a compensable injury in the nature of an occupational disease while working for both Flatiron and Grein. Insofar as pertinent, the ALJ found that the claimant’s symptoms worsened as a result of his employment duties for Grein. (Tr. p. 54) CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (ALJ’s oral findings may be considered to interpret the ALJ’s written findings). The ALJ found that the worsening is evidenced by the fact that the claimant requested to be reassigned from the cement crew, and sought further medical treatment. (Tr. p. 55.) Relying on Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986), the ALJ ordered Flatiron’s insurer, TIG Insurance Company (TIG), to pay the medical expenses incurred by the claimant prior to August 23, 1992, when it was the insurer “on the risk,” and ordered Union Insurance Company to pay the medical benefits incurred after August 23, 1992.
Union Insurance Company and Grein contend that there is no evidence in the record to support the ALJ’s finding that the claimant suffered an occupational disease during his employment for Grein, or that the claimant was “last injuriously exposed” to the disease while employed at Grein. We reject these arguments.
On appeal, it is undisputed that the claimant suffered an occupational disease during his employment with Flatiron. Therefore, the pertinent issue is whether the claimant suffered a worsening of his condition from the occupational disease subsequent to leaving Flatiron, and if so, whether the claimant’s employment at Grein aggravated or accelerated the disease See Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
The determination of the cause of the claimant’s disability and need for medical treatment is factual in nature. Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993); F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Consequently, we must uphold the ALJ’s determination that the claimant’s condition is attributable to a single occupational disease resulting from the claimant’s employment activities at Flatiron and Grein if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Monfort Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993). Furthermore, we must disregard contrary testimony or contrary inferences. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); F.R. Orr Construction v. Rinta, supra.
Here, the ALJ observed that the medical evidence is equivocal concerning the cause of the claimant’s disability. (Tr. p. 53.) However, medical evidence is neither required nor dispositive of the cause of the claimant’s condition. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
The claimant testified that after he was laid off by Flatiron, and that before he went to work at Grein his right shoulder got better. He also stated that he did not have any problems which prevented him from performing the initial job duties at Grein, but while performing cement work, his pain worsened. (Tr. pp. 27, 31, 32.) He stated that the pain increased to the point that he had trouble getting out of bed in the morning and he had to quit his employment with Grein in May 1993 because he could no longer physically continue to work. (Tr. p. 21.) Further, claimant testified that due to the condition of his right arm, he can no longer perform framing work. (Tr. p. 34.)
With regard to his medical treatment, the claimant stated that he did not use any pain medication between the employments, and now requires daily pain medication. He stated that even with daily medication, his pain is worse than it was between the Flatiron and Grein employments. (Tr. pp. 32, 33.) He also testified that he has had to obtain a stronger pain medication, because the prior medication was no longer controlling his pain. (Tr. p. 32.)
Contrary to Grein’s contention, the claimant’s testimony that his condition improved during his unemployment, and did not worsen until the latter part of his employment with Grein, supports an inference that the claimant’s condition worsened due to his employment activities on the cement crew with Grein. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (appellate issue is whether evidence when viewed in the light most favorable to the prevailing party is sufficient to support the ALJ’s pertinent findings); Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances). This inference is buttressed by the claimant’s testimony that the level of his right shoulder pain has increased to the point that he requires daily pain medication, and even with the medication he experiences pain greater that the pain he experienced prior to his employment at Grein. Therefore, we must uphold the ALJ’s determination that the claimant suffered an occupational disease during his employment for Grein. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (ALJ’s determination concerning causation may based upon circumstantial evidence).
As Grein argues, the “last injurious exposure” rule applies to circumstances, such as presented here, where the claimant sustains a single occupational disease with multiple employers or insurers. Under the rule, the employer in whose employ the claimant was “last injuriously exposed” to the hazards of the occupational disease is solely responsible for the claimant’s compensation. Section 8-41-304 C.R.S. (1995 Cum. Supp.); Royal Globe Insurance Co. Collins, supra.
However, the ALJ correctly observed that the “last injurious exposure” rule does not apply to medical benefits. Royal Globe Insurance Co. v. Collins, 723 P.2d 736. To the contrary, in Royal Globe the court held that for a claim based upon an occupational disease, the insurance carrier “on the risk” at the time medical expenses are incurred is liable for payment of those medical expenses.
Here, the claimant sought only medical benefits. Consequently, the ALJ did not determine the date of the claimant’s “last injurious exposure” to the hazards of the disease. Instead, the ALJ reserved the issue for a future determination. Moreover, the ALJ retracted his oral findings concerning the issue. (Tr. pp. 55-57, 59.) Under these circumstances, we need not consider Grein’s arguments concerning whether the claimant was last injuriously exposed to the hazards of the disease during his employment at Grein.
IT IS FURTHER ORDERED that the ALJ’s order dated April 19, 1995 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 28, 1995 to the following parties:
Curt D. Freeman, P. O. Box 115, McDonald, KS 67745
Flatiron Structures, P.O. Box 2239, Longmont, CO 80502
Ken Grein, Grein Construction, P.O. Box 381, Brighton, CO 80601
Union Insurance Company, 3641 Village Dr., Lincoln, NE 68516-4721
TIG Insurance, 6400 s. Fiddlers Green Cir., Englewood, CO 80111
Lynn Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202
(For Grein Construction Union Ins)
Jeanne Labuda, Esq., One Tower Plaza, Ste. 1270, 6400 S. Fiddlers Green Cir., Englewood, CO 80111
(For Flatiron and TIG Insurance)
Steven H. Gurwin, Esq., 1777 S. Harrison St., Ste. 906, Denver, CO 80210
(For the Claimant)
BY: _______________________