W.C. Nos. 4-191-613, 4-199-271, 4-207-423Industrial Claim Appeals Office.
October 18, 1995
ORDER OF REMAND
The Greeley Center for Independence (Greeley Center), and its insurer the Colorado Compensation Insurance Authority (CCIA), seek review of a final order of Administrative Law Judge Gandy (ALJ), which reopened a claim and awarded additional temporary disability benefits. The CCIA respondents assert that the claimant sustained an intervening injury while employed by Fairacres Manor (Fairacres). We set the order aside and remand for entry of a new order.
On July 2, 1993, the claimant sustained an accidental injury to her right shoulder while employed as a nurse’s aide at Greeley Center. The claimant was released with no restrictions on September 1, 1993. However, Greeley Center terminated her employment for cause on September 21, 1993.
In November 1993, the claimant obtained work as a nurse’s aide at Fairacres. However, the claimant continued to experience difficulties with her right shoulder, and she received additional treatment from Dr. Quick in October and December 1993.
In February 1994, the claimant was placed under lifting restrictions due to the right shoulder. Subsequently, the claimant has been either totally restricted from working, or significantly restricted with respect to lifting.
The issue before the ALJ was whether the claimant’s disability is causally connected to the injury at Greeley Center, or to a new injury or occupational disease which she sustained at Fairacres. The ALJ noted the report of Dr. Quick, dated April 22, 1994, in which the doctor stated that, by history, “the probable cause of the deterioration between 12-7-93 and 2-2-94 is the occupational activities performed at Fairacres Manor.” However, the ALJ stated that, “given the exact nature and similarity of duties at both employers, it is found that this same deterioration would have occurred regardless of where the claimant was working.” The ALJ further stated that, considering the inability of the CCIA to establish that the claimant’s “working conditions at Fairacres were in someway different than at the Greeley Center . . . it is concluded that the sheer coincidence of Claimant being present at another job site does not sever the causal chain from the injury of 7/2/93.”
In view of these findings, the ALJ attributed the claimant’s worsened condition to the July 1993 injury sustained at Greeley Center. Consequently, the ALJ granted the petition to reopen that claim and ordered the CCIA to pay temporary disability benefits commencing February 2, 1994.
On review, the CCIA respondents argue that the ALJ applied an incorrect legal standard in determining that the deterioration of the claimant’s shoulder condition was causally connected to the 1993 injury rather than a new injury sustained at Fairacres. The CCIA reasons that aggravations of pre-existing conditions constitute compensable workers’ compensation injuries or diseases, and therefore, it is irrelevant whether the claimant’s duties at Greeley Center and Fairacres were similar or identical. In the CCIA’s view the issue is whether claimant’s duties at Fairacres aggravated her pre-existing condition so as to produce a separately compensable condition. Because we agree that the ALJ may have applied an incorrect legal standard in determining the issue of causation, we remand for entry of a new order.
As the CCIA argues, if the conditions or circumstances of employment aggravate, accelerate, or combine with a pre-existing infirmity so as to produce disability, a compensable workers’ compensation injury or disease results. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). It is also true that if the claimant sustains a compensable workers’ compensation injury, the responsible employer is liable for all results flowing proximately and naturally therefrom. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
Generally, the question of whether a particular disability results from the natural progression of an industrial injury, or an aggravation or acceleration resulting from subsequent employment, is a question of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Underlying this factual determination is the rule that the employer takes the claimant as it finds her “so that the employer is responsible for any increased disability resulting to an injured worker from a pre-existing weakened condition.” Cowin and Co. v. Medina, 860 P.2d 535, 538 (Colo.App. 1992); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Where the ALJ’s findings are insufficient to determine whether the claimant has sustained one or more industrial injuries, and if so, which injury is the cause of a disability, the matter should be remanded for additional findings. Valdez v. United Parcel Service, 728 P.2d 340
(Colo.App. 1986).
Here, the ALJ appears to have concluded that the claimant did not sustain a compensable injury or occupational disease while employed by Fairacres because the duties she performed at Fairacres were similar to those which she performed at Greeley Center. However, the test is not whether the claimant’s duties at Fairacres were similar to those at Greeley Center, or whether the claimant would have sustained the same disability had she continued to work at Greeley Center. Rather, the question is whether the conditions of employment which the claimant experienced at Fairacres aggravated or accelerated the claimant’s pre-existing shoulder problem. If so, the claimant has sustained a new injury for which Fairacres is liable. Conversely, if the conditions of employment at Fairacres have not played any causative role in the claimant’s disability, then the 1993 claim could properly be reopened based on a worsened condition.
On remand, the ALJ shall make specific findings of fact determining whether the claimant’s disability is the direct and proximate result of a deterioration resulting from the July 1993 injury, or whether the conditions of employment at Fairacres aggravated or accelerated the pre-existing condition so as to cause a separate compensable event. In reaching this result, we necessarily reject the CCIA’s assertion that the evidence compels the conclusion that the claimant sustained a new injury or disease at Fairacres. To the contrary, our review of the record indicates that the evidence is conflicting on this point, and that the matter must be resolved by the ALJ in his role as fact finder. F. R. Orr Construction v. Rinta, supra.
In reaching this result, we need not consider the CCIA’s argument concerning the award of temporary disability benefits. Consideration of this issue is premature in light of our resolution of the appeal.
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 16, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
Copies of this decision were mailed October 18, 1995 to the following parties:
Kristy L. Good, 920 36th Ave., Greeley, CO 80634
Greeley Center for Independence d/b/a Patient Advocacy Team, 1734 8th Ave., Greeley, CO 80631
Fairacres Manor, Inc., Attn: Randy Weber, N.H.A., 1700 18th Ave., Greeley, CO 80631-5152
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Alexsis Risk Management, Attn: Mary Carter, 1099 18th St., #3050, Denver, CO 80202-1930
Rebecca A. Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Ann McEntire, Esq., 1430 Larimer Square, #400, Denver, CO 80202
(For Respondent Fairacres Manor, Inc.)
By: ______________________