W.C. No. 4-265-034Industrial Claim Appeals Office.
April 25, 2000
FINAL ORDER
The respondents, Good News Heating Air Conditioning Inc (Good News) and its insurer, the Colorado Compensation Insurance Authority (CCIA), seek review of an order of Administrative Law Judge Rumler (ALJ) which found the claimant suffered an occupational disease and held the CCIA solely responsible for the claimant’s medical benefits after January 29, 1999. We affirm
In November 1991, the claimant suffered an admitted neck injury arising out of his employment at Good News. At the time of the injury, Good News was insured for workers’ compensation by Liberty Mutual Insurance Company (Liberty). The claimant was placed at maximum medical improvement on May 20, 1992, with four percent whole person impairment, and he remained employed at Good News. The CCIA became the workers’ compensation carrier effective July 1, 1994
In the Spring of 1996 the claimant began to experience symptoms in his upper extremities, and the symptoms gradually worsened. Liberty denied liability on grounds that the claimant suffered a new industrial injury after July 1, 1994. The CCIA denied liability on grounds that the claimant’s condition is the natural consequence of the 1991 injury. However, the CCIA agreed to provide medical benefits commencing January 29, 1999, subject to reimbursement from Liberty if the medical treatment was subsequently found to be necessitated by the 1991 injury
On conflicting medical evidence, the ALJ found the claimant was essentially asymptomatic from 1993 until the Spring of 1996 The ALJ also found the claimant did not need medical treatment until he had performed continuous heavy labor for two years after the CCIA became the “insurer on the risk.” Consequently, the ALJ determined that the proximate cause of the claimant’s need for the disputed medical treatment was the heavy work he performed at Good News after July 1, 1994. Therefore, the ALJ ordered the CCIA to pay the disputed medical benefits without reimbursement from Liberty
Initially, we reject the CCIA’s contention that the ALJ’s findings are insufficient to ascertain whether she found the claimant suffered one or two injuries, and which injury caused the need for additional treatment. The ALJ is not held to a crystalline standard in articulating the basis for his order George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986) Rather, the ALJ’s findings are sufficient to permit appellate review if the basis of the award is apparent from the order Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992)
The respondents’ arguments notwithstanding, we have no difficulty ascertaining the basis for the ALJ’s order, and thus, the ALJ’s findings are sufficient to permit appellate review. The ALJ implicitly determined the claimant suffered two injuries. The ALJ found the claimant suffered an accidental injury in 1991, and sustained a second injury in the nature of an occupational disease due to the heavy work he performed after July 1, 1994 Furthermore, the ALJ found that the disputed medical treatment was necessitated by the occupational disease
Next, we reject the CCIA’s contention the ALJ erred in finding the claimant suffered an occupational disease. An occupational disease is an injury which results directly from the employment or conditions under which work was performed, which 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. § 8-40-201(14), C.R.S. 1999; Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). In contrast, an “accidental injury” is traceable to a particular time, place and cause. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993)
The question of whether the claimant’s condition is due to a previous injury or a new injury in the nature of an occupational disease, is one of fact for resolution by the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 1999. 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 F.R. Orr Construction v. Rinta, supra.
Contrary, to the CCIA’s further arguments, the ALJ’s pertinent findings are supported by substantial evidence in the claimant’s testimony, and thus, the ALJ’s findings must be upheld. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that employment caused his heart attack)
The claimant testified that his job duties required him to install furnaces, boilers, air conditioning units, evaporating coolers and duct work. He also stated that he had to move the units from a truck to the location where they were to be installed. (Tr. p. 29). The claimant testified that the 1991 injury occurred when he fell off a ladder and dropped 20 feet to the ground. He stated that by 1993 he suffered some “discomfort,” but most of his pain from the 1991 injury had subsided. (Tr. p 37). Then in 1996 he developed problems in his “limbs.” The claimant stated that it started out in his left arm and then it “got to where it was in both arms” and legs. (Tr. p. 38). He testified that “using pipe wrenches and wrenching on pipes,” caused him to experience “twinges or pain or whatever,” sometimes in his neck, arms, or other parts of his body. (Tr. p. 41). He also stated that the activities of lifting and moving furnaces and boilers caused him to feel “tingling and pain.” (Tr. p. 42)
The claimant also denied any industrial accidents or non-industrial accidents after 1991. (Tr. pp. 41, 44). Under these circumstances, the ALJ could, and did, reasonably infer that the claimant’s symptoms after July 1, 1994, were the result of a new injury in the nature of an occupational disease, and not the 1991 injury. F.R. Orr Construction v. Rinta, supra.
However, the CCIA contends the ALJ erred in finding that “liability” and “compensability” were not disputed issues. The CCIA contends that “liability” for the claimant’s medical benefits was disputed and the CCIA also denied the claimant suffered a “compensable” occupational disease. We perceive no reversible error
On March 3, 1999, the CCIA applied for a hearing on the issues of compensability, medical benefits and insurance coverage However, at hearing the CCIA did not dispute the claimant’s condition is work-related and thus, “compensable.” Rather, the CCIA’s attorney indicated that the issue was whether benefits were due and payable in the 1991 injury claim or a new claim. (See Tr pp. 4, 15). Consequently, we understand the ALJ as having found that “compensability” was not a disputed issue, even though he was required to determine if the claimant suffered a “compensable” occupational disease which is the “liability” of the CCIA Moreover, when the ALJ’s order is read together with the transcript, is clear the ALJ recognized that both parties disputed “liability” of the claimant’s medical benefits after January 29, 1999, and that she was required to resolve the dispute based upon a determination of the “cause” of the need for treatment. (See Discussion and Conclusions of Law; Summary Order July 13, 1999)
Nevertheless, the CCIA contends the ALJ misapplied the law in determining liability for the disputed medical benefits. The CCIA contends that the medical record compels the apportionment of medical benefits. Again, we disagree § 8-41-304(1), C.R.S. 1999 provides that liability for “compensation” due on account of an occupational disease is governed by the “last injurious exposure” rule. Royal Globe Insurance Co. v. Collins, 723 P.d. 731 (Colo. 1986). Under that rule, the insurer for the employer in whose employment the claimant was last injuriously exposed and suffered a substantial permanent aggravation of his condition is solely liable for the claimant’s “compensation.” However, the “last injurious exposure rule” only governs the apportionment of “liability” where the claimant sustains an occupational disease and is subsequently exposed to the hazards of the disease during more than one employment or during employment with multiple insurers. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995)
Here, there is no finding or assertion the claimant suffered an occupational disease prior to July 1, 1994 when the CCIA became the employer’s workers’ compensation insurer. Nor is there any evidence of a change of insurers after July 1, 1994, or other employment where the claimant was injuriously exposed to the hazards of her injury. It follows that the record compels the conclusion that CCIA is the only insurer that could be liable for the claimant’s occupational disease. Consequently, the ALJ did not err in refusing to apply the “last injurious exposure” rule
Moreover, the ALJ correctly recognized that the “last injurious rule” does not govern liability for medical benefits due on account of an occupational disease. This is true because in the context of § 8-41-304(1), the term “compensation” does not include medical benefits. Royal Globe Insurance Co. v. Collins, 723 P.d. at 736; Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Instead, the insurance carrier “on the risk” at the time medical expenses are incurred is liable for the payment of those medical expenses. Id 723 P.d. at 736
The determination of which insurer was “on the risk” at the time treatment was necessitated is to be determined under the usual rules governing liability for workers’ compensation benefits.” See Rigdon v. Doubletree Hotels, W.C. Nos. 4-175-649, 4-211-377, (March 18, 1996) Martinez v. Storage Technology Corp., W.C. No. 4-175-875, (August 31, 1995). Accordingly, the employment which caused, aggravated, or accelerated the occupational disease and triggered the need for treatment is the insurer “on the risk” for medical benefits
The proximate cause of the need for medical treatment is a question of fact for determination by the ALJ. City of Durango v Dunagan, 939 P.2d 496
(Colo.App. 1997). Causation need not be proven by medical evidence. However, to the extent that medical evidence is offered, it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990)
Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), authorizes the apportionment of medical benefits in cases where the claimant’s occupational disease is the result of more than one cause. It is also proper to apportion medical benefits between multiple workers’ compensation carriers, where the need for medical treatment is caused by sequential industrial injuries See State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985); Martin v. Montrose Memorial Hospital, W.C. No. 4-348-316 (July 10, 1998)
The medical evidence in this case is subject to conflicting inferences. The records of Dr. Janssen, Dr. Samuelson and Dr Olsen contain some evidence, which if credited might support a finding that the need for treatment after January 29, 1999, is due, at least in part, to the 1991 injury. Moreover, we recognize that Dr. Gellrick and Dr. Olson apportioned 50 percent of the claimant’s condition to the 1991 injury. However, the ALJ was not required to credit their opinions. Instead, the ALJ was persuaded by the medical history in the reports of Dr Gellrick, and Dr Olsen that the claimant sought additional treatment due to the 1996 exacerbation of his pre-existing condition. The ALJ also relied on Dr. Sylman’s report dated June 24, 1996, in which Dr Sylman stated that the claimant reported a history of shoulder and arm pain for one month, with “no preceding injury or illness.” Dr. Sylman’s report also indicates that the claimant reported being symptom free for about 1 year
Further, the ALJ’s finding is buttressed by the claimant’s testimony that he had experienced gradual relief from the 1991 injury and that extremity pain was not a component of that injury Under these circumstances, we cannot say the ALJ was compelled to find that the 1991 injury contributed to the claimant’s 1999 request for treatment
IT IS THEREFORE ORDERED that the ALJ’s order dated August 4, 1999, 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 1999. 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 April 25, 2000 to the followingparties:
Thomas F. Pollock, 9430 Dorothy Blvd., Thornton, CO 80229
Good News Heating Air Conditioning, Inc., 3615 Morrison Rd., Denver, CO 80219-2714
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance —
Interagency Mail (For Respondents Good News Heating Air Conditioning, Inc. and Colorado Compensation Insurance Authority)
Gregory W. Heron, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents Good News
Heating Air Conditioning, Inc. and Liberty Mutual Insurance Company)
David W. Krivit, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy