W.C. No. 4-169-726Industrial Claim Appeals Office.
May 14, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant sustained an occupational disease, awarded benefits and apportioned liability pursuant to Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). We modify the order, and as modified, affirm.
The ALJ’s pertinent findings may be summarized as follows. The claimant was employed as a full-time receptionist at the Companion Animal Clinic (Clinic) from October 1990 to May 1991. Thereafter, the claimant became a part-time employee so that she could spend more time on horseback riding activities. In August 1991 the claimant acquired her own horse and was riding three times a week. The horseback riding activities required “significant continual use and repetitive motion of the upper extremities.”
The claimant’s job duties at the Clinic included lifting and restraining animals approximately five times a day. In August 1991 the claimant experienced a sudden onset of pain in the left elbow and tingling and numbness in the left shoulder area, at home, in the middle of the night. Since that time the claimant has undergone extensive testing, but the claimant’s left upper extremity problems have not been completely diagnosed.
Based upon these findings, the ALJ determined that the claimant sustained an occupational disease from her duties at the Clinic. Crediting the opinions of Dr. Oster and Dr. Nusca, the ALJ determined that 51 percent of the claimant’s upper extremity problems are due to her employment, and that the remaining 49 percent is due to non-employment activities including the claimant’s horseback riding activities. The ALJ further found that the occupational exposure was not a precondition to her upper extremity problems. Consequently, the ALJ determined that the claimant sustained an occupational disease only to the extent that the occupational exposure contributed to her disability. Thus, the ALJ held the respondents liable for only 51 percent of the temporary disability and medical benefits awarded to the claimant.
I.
On appeal, the claimant first contests the ALJ’s finding that the claimant sustained an “occupational disease” and not an “accidental injury.” In support, the claimant argues that all of the medical evidence indicates that her medical problems are the result of a “traumatic accident.” The claimant also relies upon her testimony that she experienced a sudden onset of pain. We perceive no error.
An “accidental injury” may be distinguished from an “occupational disease” because an injury is traceable to a particular, time, place and cause while an occupational disease is a natural incident of the employment. Section 8-40-201(14), C.R.S. (1995 Cum. Supp.); Climax Molybdenum Co., v. Walter, 812 P.2d 1168 (Colo. 1991); Colorado Fuel Iron Corp, v, Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964) Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). In other words, where the injury results from the conditions of employment, rather than a specific accident or trauma, the injury is in the nature of an occupational disease. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1994).
Furthermore, the fact that an occupational disease becomes acutely symptomatic does not ipso facto transform it from a disease to an accidental injury. Campbell v. IBM Corp., 867 P.2d at 81. Accordingly, the evidence that the claimant suffered a sudden onset of pain is not dispositive of whether the claimant sustained an “accidental injury.”
Rather, the determination of whether the cause of the injury is sufficiently definite in time is a question of fact for the ALJ. See Campbell v. IBM Corp., supra; Delta Drywall v. Industrial Claim Appeals Office, supra. Thus, the ALJ’s determination is binding if supported by substantial evidence. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.) Campbell v. IBM Corp., supra.
Substantial evidence concerning the cause of an injury is not limited to medical evidence. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). To the contrary, the claimant’s testimony alone, if credited, may be sufficient to support the ALJ’s resolution of the causation issue Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that his employment caused his heart attack).
Here, the claimant denied any specific incident which caused her onset of pain. (Tr. p. 21). Instead, she testified that her upper extremity problems developed “over time,” from the “ongoing repetition” of her employment duties. (Tr. pp. 5, 21). Therefore, the claimant’s testimony supports the ALJ’s finding that the claimant suffered an “occupational disease.”
Moreover, Dr. Seybold suspected that the claimant suffered from Reflex Sympathetic Dystrophy (RSD), and the ALJ expressly credited Dr. Seybold’s opinion concerning the claimant’s diagnosis. Admittedly, Dr. Seybold testified that RSD is caused by “trauma.” However, he added that the “trauma” is not always a single assault but can also be a “repetitive motion, repetitive compression, repetitive trauma.” (Seybold depo. pp. 14, 15). Therefore, we are not persuaded that the medical evidence compels a finding of an “accidental injury.” See Delta Drywall v. Industrial Claim Appeals Office, supra, (carpal tunnel syndrome may be the result of an “accidental injury” or an “occupational disease”).
II.
Because Anderson v. Brinkhoff, supra, applies to occupational disease claims, and we uphold the ALJ’s determination that the claimant sustained an occupational disease, we also reject the claimant’s argument tha Anderson is not applicable.
Anderson provides for the apportionment of liability where there is more than one cause of a claimant’s disease. See generally Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984). Specifically, Anderson applies where non-employment and employment causes of a disease contribute to produce the claimant’s disability. The claimant’s further arguments to the contrary are not persuasive.
The claimant also mistakenly asserts that the respondents are liable for 100 percent of the claimant’s benefits because the ALJ found that the employment caused at least 51 percent of the claimant’s disability. To the contrary, Anderson holds that where there is no evidence that a hazardous occupational exposure is a necessary precondition to the development of a disease, the claimant suffers from an occupational disease only to the extent that the occupational disease contributed to the disability for which benefits are sought. Therefore, the employer is only liable for that portion of the claimant’s disability which is attributable to the occupational disease.
Here, there is substantial evidence in the medical record to support the ALJ’s determination that 51 percent of the claimant’s upper extremity problems were caused by the claimant’s employment, and 49 percent were caused by the claimant’s non-employment activities. See Dr. Oster report February 24, 1995; Dr. Nusca report May 12, 1993. Moreover, we are not persuaded by the claimant’s argument that the ALJ erred in rejecting Dr. Seybold’s contrary opinion concerning whether the claimant’s non-employment activities contributed to her disability.
The ALJ rejected Dr. Seybold’s opinion based upon the ALJ’s determination that:
“it is clear from his Office Note and his deposition that [Dr. Seybold] relied on Claimant’s report of her history and was not provided information concerning the extent of [the claimant’s] horse related activities.” (Finding of Fact 35).
As we read the ALJ’s finding, she determined that Dr. Seybold relied upon the history of the injury provided by the claimant, and that the history provided by the claimant did not include information about horseback riding activities. Contrary, to the claimant’s assertion, the ALJ’s finding is consistent with Dr. Seybold’s testimony. (Tr. pp. 22, 23). Furthermore, insofar as Dr. Seybold was presented with information about the claimant’s horseback riding activities during his deposition, the ALJ did not find Dr. Seybold’s subsequent opinions persuasive and we may not interfere with that determination. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Under these circumstances, we are bound by the ALJ’s determination of the relative contributions of the employment and non-employment causes of the claimant’s disease. Therefore, the ALJ correctly determined that the respondent is liable for 51 percent of the claimant’s worker’s compensation benefits. Anderson v. Brinkhoff, supra.
III.
In awarding temporary partial disability benefits the ALJ found that Dr. Nusca advised the claimant to change jobs on March 10, 1992, and that the claimant quit her part-time employment at the Clinic on March 18, 1992. The ALJ further found that on March 23, 1992, Dr. Nusca restricted the claimant from “restraining, lifting or pulling more than 2-3 pounds.” Therefore, the ALJ awarded temporary partial disability benefits commencing March 19, 1992 and continuing up through December 31, 1994.
However, the ALJ also found that the claimant received unemployment benefits for the period April 9, 1992 to October 7, 1992, and determined that the claimant was not entitled to temporary disability benefits during the period she received unemployment benefits. Therefore, the ALJ denied the claim for temporary partial disability benefits between April 9, 1992 and October 7, 1992.
The claimant contests the ALJ’s failure to award temporary partial disability benefits for the period April 9, 1992 and October 7, 1992. The claimant argues that insofar the ALJ’s order was based upon the statutory offset provisions in § 8-42-103(1)(f), C.R.S. (1995 Cum. Supp.), it must be set aside. In so doing, the claimant reasserts an argument we rejected i Axelson v. Pace Membership Warehouse, W.C. No. 3-991-705, March 17, 1995, concerning the application of § 8-42-103(1)(f).
For its part, the respondents contend that the ALJ did not “offset” their liability, and instead, denied benefits based upon a determination that the claimant was physically capable of working during the disputed period as evidenced by her receipt of unemployment benefits.
We conclude that under either analysis the ALJ erred in failing to award temporary partial disability benefits. Therefore, we modify the ALJ’s order accordingly.
Under § 8-42-103(1)(a) (b), C.R.S. (1995 Cum. Supp.), and §8-42-105(1), C.R.S. (1995 Cum. Supp.), the claimant is entitled to temporary disability benefits if the occupational disease causes disability which lasts more than three regular working days, the claimant leaves work as a result of the injury, and the claimant suffers an actual wage loss. Furthermore, once this criteria is established temporary disability benefits must continue until one of the four events set forth in §8-42-105(3), C.R.S. (1995 Cum. Supp.) occurs. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
The undisputed award of temporary partial disability benefits for the period March 19, 1992 through April 8, 1992, reflects the ALJ’s determination that the claimant established her entitlement to temporary partial disability benefits. Furthermore, the receipt of unemployment benefits is not one of the events which triggers the termination of temporary disability benefits under § 8-42-105(3)(a)-(d).
Similarly, the claimant’s hypothetical ability to perform some employment within her restrictions, does not sever the causal connection between the injury and the temporary wage loss. Schlage Lock v. Lahr, 870 P.2d 615, 617 (Colo.App. 1993). Consequently, the evidence that the claimant was awarded unemployment benefits based upon her availability for restricted work, does not preclude an award of temporary partial disability benefits for the same period.
Furthermore, in Axelson v. Pace Membership Warehouse, ___ P.2d ___ (Colo.App. No. 95CA0561, February 8, 1996), the Court of Appeals reversed our order in Axelson v Pace Membership Warehouse, supra, which affirmed a statutory offset of unemployment benefits. The Axelson court concluded that § 8-42-103(1)(f) violates constitutional guarantees of equal protection. Specifically, the court held that the allowing an offset for unemployment benefits collected by the claimant as a “means of subsistence” during a period when the employer is contesting its liability for temporary disability benefits, effectively allows the employer to convert unemployment benefits to temporary disability benefits at the claimant’s expense. Therefore, the court held that no statutory offset is allowed for unemployment benefits the claimant receives prior to maximum medical improvement while litigating temporary disability benefits.
We are bound by published decisions of the Court of Appeals. C.A.R. 35(f). Furthermore, there is no appreciable difference between the circumstances in Axelson and the ALJ’s findings of fact concerning the claimant’s receipt of unemployment benefits in this matter. Therefore, we agree with the claimant, that the respondents are not entitled to a statutory offset under § 8-42-103(1)(f), and the ALJ erred, insofar as she relied upon § 8-42-103(1)(f) to deny the claim for temporary partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 1995, is modified to provide that the claimant is awarded temporary partial disability benefits for the period March 19, 1992 through December 31, 1994, and as modified, the order 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 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 May 14, 1996 to the following parties:
Virginia L. Mills, 6175 Burgess Rd., Colorado Springs, CO 80908 Susan N. Whitmore, DVM, Companion Animal Clinic, 2873 Dublin Blvd., Colo. Spgs., 80918
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
William A. Alexander Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Kristine E. Anderson, Esq. Thomas L. Kanan, Esq., 1700, Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
BY: _______________________