W.C. No. 4-425-860Industrial Claim Appeals Office.
November 30, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Corchado (ALJ) which denied and dismissed her claim for compensation and medical benefits. We affirm the order denying medical benefits, set aside the remainder of the order and remand.
The claimant began employment as a kitchen worker for Memorial Hospital in 1984. In 1987, the claimant suffered a traumatic injury to her left arm. In 1994 the claimant began treating with Dr. Higginbotham who diagnosed a cumulative trauma disorder affecting the upper extremities. Dr. Higginbotham placed the claimant at maximum medical improvement and released the claimant to modified work. In 1995, the claimant accepted a disability retirement. Since then the claimant has received ongoing treatment from Dr. Higginbotham to maintain her condition. Between January and July 1997, the claimant worked as a part-time food demonstrator for ActMedia, Inc. (ActMedia).
The claimant alleged she suffered an occupational disease to her upper extremities while working at Memorial Hospital and was “last injuriously exposed” to the hazards of the disease at ActMedia. (Tr. pp. 6-7). Therefore, the claimant sought an order requiring the respondents’ to pay for Dr. Higginbotham’s treatment.
The ALJ determined the claimant failed to prove she sustained an occupational disease at ActMedia or that her occupational disease was “aggravated” by the ActMedia employment. Crediting the testimony of Dr. Brunsworth and Dr. Higginbotham, the ALJ also determined the claimant failed to prove an “injurious exposure” at ActMedia. Consequently, the ALJ denied the “claim for compensation and medical benefits.” The claimant timely appealed.
I.
On review the claimant does not dispute the ALJ’s finding that she failed to prove she sustained an occupational disease at ActMedia. Instead, the claimant contends the ALJ applied the wrong legal standard in failing to find that the respondents are liable for the occupational disease she sustained at Memorial Hospital. Further, the claimant contends she suffered the occupational disease prior to July 1, 1991. Therefore, the claimant argues the claim is governed by the “last injurious exposure rule” in former § 8-41-304(1), C.R.S. 1990, and the ALJ erroneously required her to prove the occupational disease was “aggravated” at ActMedia. We conclude the ALJ’s findings of fact are insufficient to permit appellate review. Therefore, we set aside the ALJ’s order which denied the claim for compensation benefits and remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2000.
As argued by the claimant, the law in effect on the date of injury governs the claim. Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). For claims based upon an occupational disease, the date of injury is the date the claimant experiences the “onset of disability.” See SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). The “onset of disability” occurs when the claimant is physically incapacitated by the disease. Henderson v. RSI, Inc., 824 P.2d 91
(Colo.App. 1991). Incapacity may be evidenced by various factors including lost time from work, reduced efficiency in the performance of regular duties, or medical restrictions affecting the claimant’s ability to perform her regular duties. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659
(Colo.App. 1986).
Where the claimant suffers an occupational disease and is exposed to the hazards of the disease during successive employments, liability for the occupational disease is governed by the “last injurious exposure rule.” Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). For occupational diseases which occur prior to July 1, 1991, former § 8-41-304(1), C.R.S. (1990 Cum. Supp.), provides that the employer in whose employment:
“the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefore, without right of contribution from any prior employer or insurance carrier.”
For occupational diseases which arise on or after July 1, 1991, the employer in whose employment the claimant was last injuriously exposed and “suffered a substantial, permanent aggravation” of the disease is solely liable for all compensation benefits due on account of the disease. See 1991 Colo. Sess. Laws, ch. 219, 8-41-304(1) at 1295; Monfort Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993).
An “injurious exposure” has been defined as “a concentration of toxic material which would be sufficient to cause the disease in the event of prolonged exposure to such concentration.”Monfort Inc. v. Rangel, supra. Under this standard the claimant is not required to prove the employment aggravated or worsened her condition. Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978). However, the ALJ may consider the absence of worsened symptoms in finding there was no injurious exposure. Union Carbide Corp. v. Industrial Commission, supra. Furthermore, the length of the exposure is irrelevant if the claimant was subjected to conditions constituting an injurious exposure. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986).
Here, the ALJ found the claimant was employed by Memorial Hospital from approximately 1984 to 1994 and that the claimant sustained a traumatic injury to her arm in 1987. The ALJ also found that during the employment “the Claimant developed bilateral upper extremity problems.” (Finding of Fact 1). Crediting Dr. Higginbotham’s opinions the ALJ further determined the claimant “has had continuous problems with both of her upper extremities since” 1992. (Finding of Fact 4). However, we are unable to ascertain whether the ALJ determined the claimant’s cumulative trauma disorder is the result of an occupational disease, or a natural consequence of the 1987 accidental injury. See Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964) (distinction between an “occupational disease” and an “accidental injury” is that an “accidental injury” is the result of an event which is traceable to a particular time, place and cause); Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991) (an “occupational disease” is acquired in the ordinary course of employment and is a natural incident of the employment). Moreover, insofar as the ALJ found the claimant sustained an occupational disease, it is unclear whether the ALJ determined it occurred before or after July 1, 1991. Consequently, the matter must be remanded for additional findings.
On remand the ALJ must determine whether the claimant proved she sustained an occupational disease at Memorial Hospital and, if so, the ALJ must determine whether the disease occurred on or after July 1, 1991. Based upon these determinations the ALJ shall redetermine the respondents’ liability for the claimant’s upper extremity problems. If the claimant suffered an occupational disease with an onset of disability prior to July 1, 1991, the respondents are liable for the occupational disease if the claimant was “last injuriously exposed” to the hazards of the disease at ActMedia. In contrast, if the claimant suffered an occupational disease on or after July 1, 1991, liability may not shifted to respondents in the absence of proof the claimant was “last injuriously exposed and suffered a substantial, permanent aggravation” of the disease due to the ActMedia employment.
However, our remand should not be understood as expressing any opinion concerning whether the claimant sustained her burden of proof. We simply conclude that additional findings of fact are necessary to determine whether the ALJ correctly applied the law in denying the claim.
In view of our disposition it is premature to consider the claimant’s contention the ALJ erred in finding the ActMedia employment duties were not “repetitive.”
II.
However, the “last injurious exposure” rule does not govern the determination of liability for medical benefits in a claim based upon an occupational disease. This is because, in the context of § 8-41-304(1), the term “compensation” does not include “medical benefits.” Royal Globe Insurance Co. Collins, supra. Thus, liability for medical benefits is not dependent upon the employment in which the claimant was “last injuriously exposed” or whether the claimant suffered a “substantial permanent aggravation.” Rather, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. Collins, supra. The insurer “on the risk” when medical expenses are “incurred” is the carrier which insured the employer whose conditions of employment were the proximate cause of the need for treatment. Rodriguez v. California Indemnity Insurance Co., (Colo.App. No. 99CA0475, October 21, 1999) (not selected for publication) (insurer on the risk at the time the claimant’s employment aggravated or accelerated occupational disease was liable for vocational rehabilitation expenses); Rigdon v. Doubletree Hotels, W.C. No. 4-175-649 (March 18, 1996); Martinez v. Storage Technology Corp.,
W.C. No. 4-175-875 (August 31, 1995).
Causation is a question of fact to be determined by the ALJ. Consequently, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); §8-43-301(8), C.R.S. 2000.
Here, the ALJ was not persuaded the claimant proved a causal relationship between Dr. Higginbotham’s treatment and her employment at ActMedia. The claimant’s arguments notwithstanding, the ALJ’s determination is supported by substantial evidence in the testimony of Dr. Higginbotham, Dr. Brunworth and the claimant. Therefore, the ALJ did not err in refusing to order the respondents to pay for Dr. Higginbotham’s treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 21, 2000, is set aside insofar as it dismissed the claim and denied all indemnity benefits and the matter is remanded to the ALJ for entry of a new order consistent with the opinions expressed herein. In all other respects the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2000. 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 November 30, 2000 to the following parties:
Nancy D. Reynolds, 2214 Frontier Dr., Security, CO 80911
ActMedia, Inc., P. O. Box 5102, Norwalk, CT 06856-5102
Twin City Fire Insurance Company, 7670 S. Chester St., Englewood, CO 80112
Twin City Fire Insurance Company, Nhu Miller, ITT Specialty Risk Services, Inc., P. O. Box 221700, Denver, CO 80222
Renee C. Ozer, Esq., 25 N. Cascade, #215, Colorado Springs, CO 80903 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy