W.C. No. 4-242-542Industrial Claim Appeals Office.
April 17, 1998
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), insofar as it held them liable for the treatment and temporary disability associated with the claimant’s bilateral carpel tunnel syndrome (CTS). We set aside the contested portion of the order and remand for entry of a new order.
The ALJ found that the claimant sustained a compensable injury when she fell on December 23, 1994, while employed by respondent United Parcel Service (UPS). As a result, the claimant sustained injuries to her “back, shoulder, wrists, and arms.”
During treatment for her injuries, the claimant was diagnosed as suffering from CTS. The treating physician, Dr. Ladwig, stated that he could not “attribute the current signs and symptoms” of CTS to the claimant’s employment with UPS. Ultimately, Dr. Ladwig placed the claimant at maximum medical improvement (MMI) for her work-related injuries on December 26, 1995.
Thereafter, the claimant requested a Division-sponsored independent medical examination (IME) on the issue of MMI. The IME physician, Dr. Machanic, issued a report describing the claimant’s medical situation as “complex,” and evidencing the “culmination of multiple injurious exposures.” In fact, Dr. Machanic stated that, the claimant’s CTS dates back many years, and that it is “likely secondary to previous occupational situations and jobs dating from 1985 through her most recent” employment with UPS. Finally, Dr. Machanic opined that the claimant is not at MMI and needs numerous treatments including a conditioning program, a home exercise program, and biofeedback therapy. Dr. Machanic also recommended surgical decompression for the claimant’s CTS. (Machanic Report July 26, 1996).
In his order, the ALJ stated that the respondents “raised the issue of pre-existing condition and pre-existing injury through the testimony” of the claimant’s supervisor. However, the ALJ stated that he was “not convinced or persuaded by such testimony that there is pre-existing injury and [he was] particularly not convinced to not follow the statutory presumption attached to Dr. Mechanic’s [sic] opinion as a Division sponsored IME.” Thus, the ALJ concluded that the claimant is not at MMI, and ordered additional treatment and temporary total disability benefits from December 24, 1994.
On review, the respondents contend that the ALJ erred in failing to make sufficient findings of fact concerning whether or not the claimant was suffering from the occupational disease of CTS prior to her employment with UPS. The respondents argue that if the claimant was suffering from preexisting, occupational CTS, then their liability for this condition should have been determined under the last injurious exposure rule of former § 8-51-112, C.R.S. (1986 Repl. Vol. 3B), and principles announced in Royal Globe Insurance Co. v. Collins, 723 P.2d 731
(Colo. 1986). We conclude that the ALJ’s findings of fact are insufficient to support appellate review, and therefore, remand for entry of a new order. Section 8-43-301(8), C.R.S. 1997.
As the respondents argue, liability for an occupational diseases is controlled by the law in effect on the date of the onset of the disability. To the extent the claimant has the occupational disease of CTS, and to the extent the disease was contracted prior to July 1, 1991, the respondents’ liability for the disease is controlled by the last injurious exposure rule without regard to substantial permanent aggravation. See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Of course, the last injurious exposure rule would not govern the respondents’ liability if the claimant sustained a traumatic aggravation of the CTS as a result of the December 1994 injury. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993)
Here, the ALJ failed to consider the last injurious exposure rule because he was “not convinced” by the testimony of the claimant’s supervisor that the claimant had a preexisting “injury” or “condition.” However, we are unable to ascertain the basis of this finding.
First of all, the evidence of a preexisting occupational disease involving the claimant’s upper extremities was not limited to the testimony of the claimant’s supervisor, as the ALJ apparently found. In fact, the claimant herself testified that she filed a claim against a prior employer based on CTS. (Tr. p. 20). Further, Dr. Machanic’s report indicates that the claimant was suffering from occupational CTS as far back as 1985. (See also, report of Dr. Weiss dated June 1, 1995). The record also contains the ALJ’s order of April 21, 1994, in which he found that “there is adequate evidence from which it could be concluded that claimant sustained an occupational disease affecting her arms, hands, shoulder, and neck caused by the conditions of her employment at Boise Cascade Corporation.”
It follows that we are unable to ascertain the basis of the ALJ’s statement that the claimant did not have a preexisting condition or injury. On remand, the ALJ shall determine whether the claimant was suffering from the preexisting occupational disease of CTS. If the ALJ determines that the claimant was suffering from the preexisting disease of CTS, he shall determine the respondents’ liability according to the applicable law. On the one hand, the ALJ might find that the respondents’ liability for the occupational disease is dependent on a finding of last injurious exposure. Alternatively, the ALJ could find that the claimant sustained a separate, compensable aggravation of the CTS as a result of the accidental injury of December 23, 1994. In reaching this result, we should not be understood as expressing any opinion concerning proper resolution of the factual issues in the case.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1995, is set aside insofar as it held the respondents liable for the claimant’s CTS. The matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
Copies of this decision were mailed April 17, 1998 to the following parties:
Cheryl M. Pilcher, 8379 Dudley Ct., Arvada CO 80005
United Parcel Service, Inc., Steve Shomaker, 5020 Ivy Street, Commerce City, CO 80022
Margaret Malone, Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
John J. Taussig, Esq., 1919 Fourteenth St., Ste. 805, Boulder, CO 80302 (For the Claimant)
John M. Connell, Esq. Dawn M. Yager, Esq., 1675 Larimer St., Ste. 710, Denver, CO 80202 (For the Respondents)
By: __________________________________________________