W.C. Nos. 4-400-958, 4-402-244Industrial Claim Appeals Office.
September 11, 2001
FINAL ORDER
Respondents On Site Commercial Staffing and Reliance National Indemnity (collectively On Site respondents) seek review of an order of Administrative Law Judge Wheelock (ALJ) holding them liable for the claimant’s occupational disease and ordering them to pay temporary disability benefits. The On Site respondents argue the ALJ incorrectly found claimant sustained an occupational disease rather than an industrial injury,
that the evidence does not support the ALJ’s finding the claimant sustained a substantial permanent aggravation of the disease while the claimant was employed by On Site, and the ALJ should not have awarded temporary disability benefits because a treating physician placed the claimant at maximum medical improvement (MMI). We affirm.
In July 1998 the claimant was employed by Interim Personnel, a temporary services agency insured by the Insurance Company of the State of Pennsylvania (collectively Interim respondents). The claimant was assigned to work at General Electric as an “order puller.” The claimant testified the order puller job required him to lift heavy boxes and involved frequent overhead reaching. On July 17, 1998, and again on July 24, 1998, the claimant experienced right shoulder pain when moving large reels of wire. (Tr. pp. 18, 23, 27).
The claimant was referred to Dr. Noel who diagnosed a shoulder strain and imposed restrictions prohibiting overhead lifting and lifting more than 20 pounds. The claimant was then assigned the job of “order checker,” which was somewhat lighter duty and did not require as much overhead reading. (Tr. p. 27; see also, report of vocational expert Pickett). In approximately September 1998, the claimant began to experience pain in his left upper extremity because he was “using it more, to move around parts, instead of using” his right arm. (Tr. p. 26, Midtown physical therapy note, September 21, 1998).
The claimant was placed on a regimen of conservative treatment including physical therapy. The claimant testified that by October 13, 1998, his right shoulder was “feeling better,” although not entirely pain free. Dr. Noel then placed the claimant at MMI and released him to work without restrictions. The claimant then returned to his pre-injury job as an order puller, but he experienced a “flare up” in pain. On November 2, 1998, the claimant was examined by Dr. Greenberg who diagnosed injury-related right shoulder pain caused by an aggravation of preexisting AC joint degenerative disease, and left elbow epicondylitis. The claimant was again placed under work restrictions which prohibited him from returning to work as an order puller.
On October 19, 1998, the claimant became an employee of On Site after Interim Personnel lost its contract with General Electric. On October 28, 1998, On Site discharged the claimant after he requested a day off because of increasing pain. Since the discharge, the claimant has remained unemployed because of pain and the restrictions imposed by Dr. Greenberg.
At the hearing, Dr. Noel testified that he agreed with Dr. Greenberg the claim was suffering from a preexisting degenerative disease of the shoulder, and opined the claimant’s “repetitive motion” at work aggravated the preexisting condition. Further, Dr. Noel testified the claimant suffered a substantial and permanent “aggravation and acceleration” of his condition after returning to regular employment on October 14, 1998. Dr. Noel based this opinion on physical therapy notes showing substantial improvement in the claimant’s condition prior to October 13, 1998, his own examination of the claimant on October 13, and a physical therapy note showing substantial deterioration of the claimant’s condition by October 27, 1998. Dr. Noel specifically cited the requirement of overhead reaching as one of the factors causing the deterioration. (Tr. pp. 59-64, 68-69).
The ALJ, credited the claimant’s testimony, medical records, and the opinion of Dr. Noel, and found the claimant proved that he sustained “a work-related occupational disease to his right and left upper extremities and neck” with an “onset of pain in July 1998.” The ALJ further found the claimant sustained a substantial and permanent aggravation of the “upper extremity and neck occupational disease condition” while employed by On Site. In support of this conclusion, the ALJ credited the claimant’s testimony that his condition was improving prior to October 13, 1998, but substantially deteriorated after returning to full duties following the release by Dr. Noel. The ALJ also relied on Dr. Noel’s testimony, the medical records and the reports Dr. Greenberg.
I.
On review, the On Site respondents first contend the ALJ incorrectly analyzed the case as involving an occupational disease rather than an accidental injury to the right upper extremity. These respondents assert all of the evidence, including the claimant’s testimony and numerous medical records, establishes the claimant suffered an accidental injury on July 17, 1998, while pushing the spool of wire. It follows, the On Site respondents argue, the ALJ should not have considered the last injurious exposure and substantial permanent aggravation requirements as the basis for assigning liability to On Site. We are not persuaded.
Initially, it is questionable whether the ALJ correctly treated the claimant’s left upper extremity problems as a compensable consequence of the injury or occupational disease involving the claimant’s right upper extremity. Arguably, the left upper extremity problems constitute a separate occupational disease incurred when the claimant returned to modified duty, rather than a direct and proximate result of the right upper extremity injury. See Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d 591 (Colo.App. 1998); Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994). However, we do not understand the On Site respondents to dispute the ALJ’s conclusion that the left upper extremity problems may be considered a legal consequence of the right upper extremity problems regardless of whether the right upper extremity problems are viewed as an accidental injury or occupational disease. Thus, we do not consider what if any consequences this distinction might have if the issue had been raised Cf. Citadel Mall v. Industrial Claim Appeals Office, supra.
An accidental injury is one which is traceable to a particular time, place and cause. In contrast, an occupational disease results from the conditions under which the work was performed and can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment. Section 8-40-201(14), C.R.S. 2000; Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Some medical conditions may be classified as either an occupational disease or accidental injury depending on the circumstances. In such cases, the issue is one of fact for determination by the ALJ. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Because the issue is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record See University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001).
The On Site respondents’ argument notwithstanding, the evidence did not compel the ALJ to conclude the claimant sustained an accidental injury rather than an occupational disease. As noted in Campbell v. IBM Corp., supra, the fact that an occupational disease becomes acutely symptomatic does not automatically transform the disease into an accidental injury. It is true the claimant testified that he first experienced symptoms of his right shoulder condition while pushing a spool of wire. However, in light of the evidence the claimant’s job required heavy lifting and overhead reaching, and considering the testimony of Dr. Noel that this type of activity probably aggravated and accelerated the claimant’s preexisting degenerative condition, the record contains substantial evidence from which the ALJ could infer the claimant sustained an occupational disease rather than an accidental injury. Moreover, the claimant’s symptoms substantially increased when he was released to regular employment and began performing his preinjury duties. Where, as here, the record supports equally plausible inferences, we may not substitute our judgment for that of the ALJ concerning the conclusions to be drawn from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
It follows the ALJ correctly concluded that, because the claimant sustained an occupational disease, the liability of the On Site respondents for the claimant’s bilateral upper extremity disease is governed by the last injurious exposure and substantial permanent aggravation requirements of § 8-41-304(1), C.R.S. 2000. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995) (statute was adopted to apportion full liability for occupational diseases among various parties which could potentially be liable, while saving the claimant the onerous task of proving which specific employer cause the disability). Insofar as the On Site respondents contend that “all of the evidence” compels a contrary conclusion, we reject that argument for the reasons stated above.
II.
The On Site respondents next contend that the ALJ erred in finding the claimant sustained a substantial permanent aggravation of his occupational disease after On Site came on the risk October 19, 1998. These respondents assert the record does not contain evidence to support the finding the claimant’s duties with On Site were responsible for the “alleged increased shoulder pain.” Further, the On Site respondents assert the evidence compels conclusion the claimant was “equally exposed” to his disease by factors outside of employment. We find no error.
The question of whether the claimant’s employment at On Site “caused” a “substantial permanent aggravation” for purposes of §8-41-304(1), is one of fact for determination by the ALJ. See University Park Care Center v. Industrial Claim Appeals Office, supra; Monfort Inc., v. Rangel, 867 P.2d 122 (Colo.App. 1993). Although there was conflicting evidence, the record contains medical evidence showing the claimant’s right shoulder condition was improving prior to October 13, 1998, and substantially worsened after he returned to his regular duties. Dr. Noel provided expert medical opinion that the return to regular duties aggravated and accelerated the claimant’s condition to a substantial and permanent degree. This opinion was corroborated by Dr. Greenberg’s November 2 office note stating the claimant’s shoulder condition had “returned to where it originally was.” Moreover, on December 1, 1998, Dr. Greenberg recommended surgery on the right shoulder AC joint.
Further, the ALJ did not misapply the burden of proof in finding the claimant sustained a compensable occupational disease, and was not equally exposed to the hazards of the disease outside of employment. As we have held, substantial evidence supports the finding that heavy lifting and overhead work caused the claimant’s disability by aggravating a preexisting shoulder condition. To the extent the On Site respondents wished to establish the claimant was equally exposed to hazards of this disease outside of the employment, the burden was on them to do so. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). The record amply supports the ALJ’s implicit conclusion that the On Site respondents failed in this regard.
III.
The On Site respondents’ final contention is the ALJ erred in awarding temporary disability benefits commencing October 28, 1998, because Dr. Noel, the treating physician, placed the claimant at MMI on October 13. The respondents assert the ALJ had no jurisdiction to award temporary disability benefits because the claimant did not request a Division-sponsored independent medical examination (DIME) to dispute the treating physician’s finding of MMI. Section 8-42-107(8)(b)(III), C.R.S. 2000. We reject this argument.
It is true that where a claimant seeks to dispute the treating physician’s finding of MMI, the claimant must ordinarily seek a DIME in accordance with § 8-42-107(8)(b). See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). However, we have held that where the claimant proves his condition worsened subsequent to the treating physician’s determination of MMI, the ALJ may award additional temporary disability benefits without requiring the claimant to undergo a DIME. The rationale for this conclusion is that the treating physician’s finding of MMI does not preclude the ALJ from reopening the award of benefits based on a finding the claimant sustained a subsequent worsening of condition. Moreover, an ALJ’s finding the claimant’s condition has worsened does not constitute an implicit attack on the treating physician’s finding the claimant attained MMI at some time prior to the worsening. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Tuttrow v. Gosney and Sons, W.C. No. 3-102-245 (October 24, 1997), aff’d., Gosney and Sons, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1948, May 28, 1998) (not selected for publication).
Here, the ALJ explicitly found claimant’s condition worsened after Dr. Noel placed him at MMI on October 13, 1998. Indeed, Dr. Noel himself agreed with this conclusion, and Dr. Greenberg’s November 2 report supports the determination. Consequently, it was unnecessary for the claimant to undergo a DIME in order to prove entitlement to temporary disability benefits based on the worsened condition.
IT IS THEREFORE ORDERED that the ALJ’s order dated to August 7, 2000, 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. 2000. 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 September 11, 2001 to the following parties:
Gerardino Gonzalez, 355 Bannock, #2, Denver, CO 80223
On Site Commercial Staffing/Allegis Group, Inc., 7312 Parkway Dr., 2nd floor, Hanover, M.D. 21076
Interim Personnel, Spherion, 441 Wadsworth Blvd., #102, Lakewood, CO 80226
Reliance National Indemnity, J. B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202
Insurance Company of the State of Pennsylvania, Nhu Miller, Specialty Risk Services, P. O. Box 22815, Denver, CO 80222
Christopher W. Crabtree, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80215 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents On Site Commercial Staffing and Reliance National Indemnity)
Clyde E. Hook, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents Interim Personnel and Insurance Company of the State of Pennsylvania)
BY: A. Pendroy