W.C. No. 4-299-732Industrial Claim Appeals Office.
May 4, 1998
FINAL ORDER
The respondent has filed a petition to review the order of Administrative Law Judge Gandy (ALJ) which ordered the respondent to pay workers’ compensation benefits to the claimant without apportionment. We affirm.
The claimant suffers from a wrist condition called Keinbock’s disease, which involves a loss of blood supply to the lunate of the wrist. The respondent concedes that this condition was aggravated by the claimant’s repetitive duties as a beef trimmer. However, the respondent contended that the underlying condition is non-occupational and therefore, that benefits should be apportioned in accordance with the holding in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). However, the ALJ determined that the respondent failed to sustain its burden of proving that the claimant `s condition was caused, aggravated, or intensified by non-occupational hazards. Consequently, the claim for apportionment was denied and dismissed, and the respondent was ordered to pay medical benefits arising out of the occupational disease.
On appeal, the respondent contends that the ALJ has misinterpreted Anderson v. Brinkhoff, supra, and that the mere existence of a pre-existing condition supports an apportionment. We disagree.
Anderson v. Brinkhoff addresses apportionment of liability for occupational diseases. However, a claimant does not sustain an occupational disease until the onset of disability. Subsequent Injury Find v. Industrial Claim Appeals Office, 899 P.2d 271
(Colo.App. 1994); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Indeed, in Anderson, the claimant suffered from a hereditary condition which caused progressive emphysema, but the Court was concerned with apportionment between the non-occupational hazard of smoking and the occupational hazard of dust exposure, both of which contributed to the claimant’ disability. See also Askew v. Industrial Claim Appeals Office, 927 P.2d 1133 (Colo. 1996). Here, the ALJ noted that the respondent did not present evidence of any non-occupational hazards which contributed to the claimant’s disability. Further, we are unpersuaded that the causes of the underlying disease e.g., the length of the ulnar bone and the claimant’s vascular makeup, constitute hazards of the disability. As the ALJ determined, the “hazards” at issue are those factors which may cause, aggravate, or intensify the disability for which compensation is sought.
The respondent nevertheless argues that Dr. Conyers opined that the claimant’s work activities only contributed 15% to her overall disability. However, Dr. Conyers attributed the other 85% to the claimant’s underlying condition, which, for the reasons stated above, is insufficient to support an apportionment. We are not persuaded otherwise by Dr. Conyers’ opinion that the claimant’s condition would eventually have become symptomatic and that the claimant’s job duties were not a necessary precondition to the development of her symptomatology. Dr. Bussey rendered an arguably contrary opinion, and the ALJ found that opinion more credible than that of Dr. Conyers. We have no basis for disturbing the ALJ’s resolution of conflicts in the evidence and or his credibility assessments. See § 8-43-301(8), C.R.S. 1997 Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondent’s remaining contentions are not persuasive. To the extent that the opinions of Dr. Conyers and Dr. Bussey can be interpreted consistently, it was the ALJ’s province to determine the prevailing interpretation. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968).
IT IS THEREFORE ORDERED that the ALJ’s order issued July 7, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ Dona Halsey ___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§8-43-301(1) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this order were mailed May 4, 1998 to the following parties:
Maria Rodriguez, 2205 37th St. #19, Evans, CO 80620
Julie Frantz, Monfort, Inc., P.O. Box G, Greeley, CO 80632
Britton Morrell, Esq., 710 11th Ave., Ste. L-10, Greeley, CO 80631 (For the Claimant)
Kyle Thacker, Esq., 2629 Redwing Rd., Ste. 330, Ft. Collins, CO 80526 (For the Respondent)
By: ___________________________________________________