W.C. Nos. 4-262-340, 4-258-257Industrial Claim Appeals Office.
June 18, 1998
FINAL ORDER
The Colorado Compensation Insurance Authority (CCIA) and its insured, Luna Construction Co., Inc., (collectively the CCIA respondents) seek review of orders of Administrative Law Judge Stuber (ALJ) dated March 13, 1996 and March 23, 1998. The CCIA respondents contend the ALJ erred in ordering them to pay temporary total disability benefits on account of an occupational disease. We disagree, and therefore, affirm.
The parties stipulated the claimant suffered an injury on May 25, 1995, arising out of and in the course of his employment for Luna Construction Co., Inc. (Luna). The injury was diagnosed as a lumbar strain. At the time of the injury, Luna was insured by California Indemnity Insurance Company (collectively the California respondents). The claimant did not miss any time from work as a result of the injury and was able to resume his regular employment.
The CCIA became Luna’s workers’ compensation insurance carrier effective July 7, 1995. The claimant testified that his condition gradually worsened after May 25, 1995, until July 31, 1995, when he was unable to continue working.
The ALJ found that the claimant’s repetitive exposure to heavy work between May 25, 1995, and July 31, 1995, substantially and permanently aggravated a pre-existing condition caused by the lumbar strain. Therefore, the ALJ determined the claimant sustained an occupational disease. The ALJ also found that the claimant was last injuriously exposed to the hazards of the disease when the CCIA was on the risk. Therefore, in an order dated March 13, 1996, the ALJ directed the CCIA respondents to pay temporary total disability benefits from August 2, 1995 to October 3, 1995, the date the claimant reached maximum medical improvement. The claimant’s temporary disability rate was subsequently determined in a Supplemental Order dated March 23, 1998.
On review the CCIA respondents contend they had no notice the ALJ would consider whether the claimant sustained an occupational disease. Therefore, they argue the ALJ’s finding of an occupational disease violated their right to due process of law.
Due process of law requires that the parties be afforded an opportunity to confront adverse witnesses and present evidence and argument in support of their position. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, we need not consider arguments which were not preserved for appellate review. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
At the hearing, counsel for the California respondents submitted a written “Position Statement” which argued that the claimant’s worsened condition was the result of an occupational disease. The CCIA respondents made no objection to the ALJ’s consideration of the Position Statement, nor did they request a continuance on grounds of unfair surprise. Instead, counsel for the CCIA respondents argued that the claimant did not suffer an occupational disease which was substantially and permanently aggravated while the CCIA was the insurer on the risk. (Tr. pp. 6, 8-10).
Under these circumstances, we conclude the CCIA respondents failed to preserve their due process argument. Therefore, they may not now complain they were surprised by the ALJ’s consideration of the theory that the claimant suffered an occupational disease. Cf. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (respondents cannot complain of confusion in record caused in part by their own contradictory certificates of mailing); Jacobs v. Commonwealth Highland Theaters, Inc., 738 P.2d 6 (Colo.App. 1986) (party cannot complain of error it invited ALJ to commit). Moreover, the CCIA respondents tried the issue of occupational disease by their implicit consent. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
The CCIA respondents also contend the ALJ misapplied the law in holding them liable for the claimant’s temporary disability. They contend that the pertinent issue, which the ALJ failed to determine, was whether the claimant’s condition was the natural and proximate consequence of the May 25 injury. Further, the respondents contend there is substantial evidence of a causal connection between the May 25 injury and the claimant’s subsequent worsening of condition. Therefore, they argue the ALJ erred insofar as he determined their liability based upon the application of § 8-41-304(1), C.R.S. 1997. We disagree.
An occupational disease is a disease which results directly from the conditions under which the claimant performs his employment, and “can be fairly traced to the employment as a proximate cause.” Section 8-40-201(14), C.R.S. 1997; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The fact a claimant has a preexisting condition or injury does not preclude the claimant from proving a compensable injury due to an occupational aggravation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
The question of whether the claimant’s condition is the result of an accidental injury or occupational disease is one of fact for resolution by the ALJ. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1997.
Contrary to the argument of the CCIA respondents, the ALJ considered, but was not persuaded that the claimant’s worsened condition was a natural consequence of the May 25 injury. Instead, the ALJ found that the worsened condition was due to an aggravation of the claimant’s pre-existing condition from repetitive, heavy work after May 25, 1995. The ALJ’s determination is supported by evidence the May 25 injury did not require any substantial medical treatment, did not result in any lost time from work and did not preclude the claimant from performing his regular job duties. The finding is also supported by the claimant’s testimony that his back pain from May 25 injury worsened and spread to his legs in July when he began performing heavier work up to 12 hours a day. (Tr. pp. 25, 26, 28, 40).
Furthermore, the ALJ’s findings support his determination that the claimant’s worsened condition is the result of an occupational disease and not an accidental injury. Consequently, we need not consider whether the record contains some evidence, which if credited, might support a contrary determination. See F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
Section 8-41-304(1) applies where the claimant is exposed to the hazards of the disease during multiple employments, or where there have been multiple insurers on the risk during the period of exposure. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). Under these circumstances:
“[T]he employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”
Here, the record supports the ALJ’s determination that there were multiple insurers on the risk when the claimant was occupationally exposed to the hazards of the occupational disease. Furthermore, the ALJ’s finding that the claimant was last injuriously exposed on July 31, 1995 and was thereafter disabled from performing his regular work, supports his conclusion that the claimant’s condition was substantially and permanently aggravated when the CCIA was the insurer on the risk. Consequently, we perceive no error in the ALJ’s application of § 8-41-304(1).
IT IS THEREFORE ORDERED that the ALJ’s orders dated March 13, 1996 and March 23, 1998, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 18, 1998 to the following parties:
Ruperto M. Pinon, P.O. Box 11522, Denver, CO 80211
Luna Construction, Inc., Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210
Colorado Compensation Insurance Authority, Attn: Carolyn Boyd, Esq. — Interagency Mail
California Indemnity Insurance Company, 5572 DTC Parkway, #335, P.O. Box 6597, Englewood, CO 80155-6597
Robert Maes, Esq., 1610 Gaylord St., Denver, CO 80206 (For Claimant)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondent Employer and California Indemnity Insurance Company)
BY: _______________________