W.C. No. 3-825-227Industrial Claim Appeals Office.
February 24, 1999.
FINAL ORDER
California Indemnity Insurance Company (California) and its insured, Benny’s Concrete Inc., (collectively the California respondents) seek review of an order of Administrative Law Judge Gandy (ALJ). The California respondents contend the ALJ erroneously ordered them to pay for vocational rehabilitation. We disagree, and therefore, affirm.
In 1985, the claimant sustained an occupational disease from the repetitive activities required in his duties as a concrete finisher for the respondent-employer. At the time of the injury, the employer was insured for workers’ compensation by American States Insurance Company (American). From April 12, 1991 to April 1, 1995, the employer was insured by the Colorado Compensation Insurance Authority (CCIA). Effective April 1, 1995, California became the insurer. As a result of the injury the claimant underwent several shoulder surgeries. The last surgery was performed on May 15, 1995 by Dr. Duncan.
In an order dated December 12, 1995, the ALJ determined that the claimant was last injuriously exposed to the hazards of the disease when the employer was insured by the CCIA. Therefore, the ALJ held the CCIA responsible for disability benefits.
Dr. Duncan placed the claimant at maximum medical improvement (MMI) on April 9, 1996. The claimant subsequently requested vocational rehabilitation benefits as provided by former §8-49-101(4), C.R.S. (1986 Repl. Vol. 3B) [repealed 1987 Colo. Sess. Laws, ch. 51 at 387-394, effective July 1, 1987 (Senate Bill 79)].
In order dated February 3, 1998, the ALJ determined the claimant is eligible for vocational rehabilitation. The ALJ also determined that the insurer on the risk when the claimant was last injuriously exposed to the hazards of the disease is solely liable for the cost of vocational rehabilitation. Based upon his prior determination that the claimant was last injuriously exposed to the hazards of the disease during the CCIA’s coverage period, the ALJ ordered the CCIA to provide vocational rehabilitation benefits. The CCIA appealed.
On appeal, we concluded the ALJ erred in finding that liability for vocational rehabilitation benefits is governed by the “last injurious exposure” rule. We held that “vocational rehabilitation benefits awarded under former § 8-49-101(4) are a form of medical benefits. State Compensation Insurance Fund v. Velasquez, 628 P.d. 190 (Colo.App. 1981); Garcia v. King Soopers, W.C. No. 3-75-280 (July 22, 1986). Furthermore, we observed that in Royal Globe Insurance Co. Collins, 723 P.d. 731 (Colo. 1986), the court held that the insurance carrier “on the risk” at the time medical expenses are incurred for an occupational disease is liable for the payment of the medical expenses. We concluded that the insurer “on the risk” is the insurer providing coverage at the time the employment caused, aggravated or accelerated the disease so as to cause the need for treatment.
In an Order of Remand dated October 2, 1998, we set aside the ALJ’s order and remanded the matter to the ALJ for the entry of a new order on the issue of liability for vocational rehabilitation. On remand the ALJ entered the order on review. The ALJ determined that the claimant’s continued employment as a concrete finisher between April 1, 1995 and December 19, 1997, aggravated and accelerated the claimant’s occupational disease. In support, the ALJ determined that in April 1996 Dr. Duncan medically restricted the claimant from performing his preinjury employment. The ALJ also found that it was not until November 3, 1997, that Dr. Duncan first opined the claimant should not continue to work as a concrete finisher, and recommended a vocational evaluation. Based upon these findings the ALJ determined that California was the insurer “on the risk” when the employment caused the need for vocational rehabilitation. Consequently, the ALJ ordered the California respondents to pay for the cost of vocational rehabilitation. The California respondents timely appealed.
On review the California respondents contend that the ALJ’s findings of fact contradict his prior determination that the claimant’s employment after April 1, 1995, did not cause, aggravate or accelerate the occupational disease. They also contend that the record contains medical recommendations for a career change dating back to 1986, and that Dr. Duncan first recommended a vocational rehabilitation evaluation in November 1995 not November 1997. Therefore, they argue that the ALJ’s findings are not supported by substantial evidence in the record. We are not persuaded.
As stated in our Order of Remand, the test for determining whether an insurer was “on the risk” for a particular medical benefit is to be determined under the usual rules governing liability for workers’ compensation benefits. See Wallace v. Home Base W.C. No. 4-210-135 (June 6, 1996); 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). Consequently, to impose liability for medical benefits on a particular insurer the evidence must establish a causal connection between the need for medical benefits and the employment. In other words, the evidence must show that the employment caused, aggravated, or accelerated the occupational disease before the insurer may be considered “on the risk” for purposes of paying medical expenses.
Vocational rehabilitation is required where, as a result of the injury, the claimant is “unable to perform work for which he has previous training or experience.” Section 8-49- 101(4). Consequently, the insurer on the risk when at the time the occupational disease caused the need for retraining is responsible for the cost of vocational rehabilitation.
The determination of when the claimant needed vocational rehabilitation is factual in nature. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Under this standard we must defer to the ALJ’s credibility determinations, his assessment of the sufficiency and probative weight of the evidence and his resolution of conflicts in the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Contrary to the arguments of the California respondents, there is substantial evidence in the record to support the ALJ’s determination that the claimant’s shoulder injury was aggravated by the claimant’s work activities after April 1, 1995, and that the aggravation resulted in the need for vocational rehabilitation.
After shoulder surgery in 1993, the claimant continued to work for the employer. However, the claimant reduced the physical work and repetitive motion activities. Nevertheless, the claimant’s condition worsened. The claimant stated that by March 1995 he could no longer work full-time. (Tr. p. 26). Furthermore, as a result of the worsened condition the claimant underwent further surgery on May 15, 1995.
It is undisputed that after the May 1995 surgery Dr. Duncan precluded the claimant from returning to full-time work as a concrete finisher. On April 9, 1996, Dr. Duncan opined that “Long term I really think [the claimant] needs to get into a lighter job with no lifting over thirty to forty pounds, no overhead use of the arms and try to minimize repetitive shoulder activities.” Similarly, on July 26, 1996, Dr. Duncan reported that long term the claimant “is not going to tolerate the concrete type of work he has been doing in the past and really needs to get into something else.” On November 3, 1997, Dr. Duncan testified to the claimant’s need for vocational rehabilitation. Based upon this evidence, the ALJ could, and did, reasonably infer that the proximate cause of the need for vocational rehabilitation benefits was the claimant’s employment after April 1, 1995. Consequently, the existence of evidence in the record which, if credited, might support a contrary finding is immaterial. See F.R. Orr Construction 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).
Admittedly, Dr. Duncan testified that he first advised the claimant to seek less strenuous employment in the fall of 1995. (Duncan depo. pp. 14, 15). However, regardless of whether Dr. Duncan first recommended a vocational rehabilitation evaluation in late 1995 or November 1997, the record supports the ALJ’s determination that the recommendation was made during California’s coverage period. Consequently, the ALJ’s error, if any, in finding that Dr. Duncan did not recommend a vocational rehabilitation evaluation until November 1997, is harmless and shall be disregarded. Section 8-43-310 C.R.S. 1998; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
Further, we reject the respondents’ argument that the ALJ exceeded the scope of remand. Our order of remand set aside the ALJ’s February 3 order, and directed the ALJ to enter a new order. The Order of Remand contemplated the entry of new findings of fact concerning which insurer was on the risk for vocational rehabilitation based upon a reconsideration of the evidence. Therefore, the ALJ was not bound by his prior findings of fact See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (court deferred to industrial commission’s interpretation of its own order of remand); Struble v. Douglas County School District, W.C. No. 3-998-051 (October 27, 1995). In fact, had we concluded that the prior findings of fact were sufficient, we could have resolved the issue as a matter of law and it would have been unnecessary to remand the matter. Cf. Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion, the issue is a question of law). It follows that the California respondents’ arguments concerning inconsistencies between the ALJ’s February and November orders do not establish grounds which afford us a basis to grant appellate relief.
Moreover, the ALJ did not previously find there was no “aggravation” of the claimant’s condition after April 1, 1995. Rather, the ALJ determined that for purposes of applying the “last injurious exposure rule” there was no evidence of a “substantial, permanent aggravation” of the claimant’s condition while California was the insurer on the risk. (February 3, 1998, Finding of Fact 11). However, the ALJ correctly recognized that the test for determining whether there has been a “last injurious exposure” is not the same as the test for determining liability for medical benefits. Section 8-41-304(1), C.R.S. 1998. Thus, the record does not support the California respondents’ argument of a conflict between the February 3 and October 14 orders.
The respondents remaining arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 16, 1998, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed February 24, 1999 to the following parties:
Domingo Rodriguez, 1028 E. 7th St., Loveland, CO 80537
Benny’s Concrete, Inc., P.O. Box 1644, Loveland, CO 80539-1644
California Indemnity Ins., 5575 DTC Parkway, Ste. 335, P.O. Box 6597, Englewood, CO 80155-6597
George Edwards, American States Ins. Co., 1770 25th Ave., Greeley, CO 80631
George Edwards American States Ins. Co., P.O. Box 441540, Aurora, CO 80044
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Stephen J. Jouard, Esq., P.O. Drawer J, Ft. Collins, CO 80522 (For the Claimant)
George Edwards, American States Ins. Co., c/o Clyde E. Hook, Esq. 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227
Clyde E. Hook, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (American States Respondents)
Mark H. Dumm, Esq., and Benjamin E. Tracy, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (California Indemnity Respondents)
Michael W. Sutherland Esq., 3464 S. Willow St., Denver, CO 80231-4566 (CCIA Respondents)
BY: _______________