W.C. No. 4-331-478Industrial Claim Appeals Office.
April 13, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined that the claim for medical benefits to treat chronic beryllium disease is barred by § 8-41-206. C.R.S. 1999. We set aside the order and remand for further proceedings § 8-41-206 provides that:
“Any disability beginning more than five years after the date of injury shall be conclusively presumed not to be due to the injury, except in cases of disability or death resulting from exposure to radioactive materials, substances, or machines or fissionable materials, or any type of malignancy caused thereby, or from poisoning by uranium or its compounds or from asbestosis, silicosis or anthracosis.”
The claimant worked for the respondent-employers at the Rocky Flats plant from 1962 to September 1991. During the claimant’s employment at Rocky Flats he was exposed to beryllium. In 1996 Dr. Newman diagnosed the claimant with chronic beryllium disease caused by his occupational exposure to beryllium. Dr. Newman opined that the disease process began in the 1980’s and caused some physical incapacity by 1989. Dr. Repsher agreed with Dr Newman’s diagnosis, but disagreed with Dr. Newman’s opinion that the disease has caused impairment. The claimant filed a workers’ compensation claim and requested medical benefits
The ALJ found the claimant suffered from chronic beryllium disease caused by his occupational exposure to beryllium. He also determined that the last potential date the claimant could have suffered an “injury” at Rocky Flats was September 25, 1991, the claimant’s last day of work at Rocky Flats. The ALJ did not expressly determine if and when the beryllium disease became disabling. However, the ALJ determined the claimant failed to prove that the “injury” resulted in”disability” any time prior to September 1991 or within 5 years of the date he was last employed at Rocky Flats
Based upon these findings the ALJ determined that the claimant’s disability, if any, began more than five years after the date of the injury, and, therefore, that § 8-41-206 created a conclusive presumption that the claimant’s disability is not due to the alleged industrial injury. Consequently, the ALJ denied and dismissed the claim for medical benefits
On review the claimant contends the ALJ misapplied the law in finding that § 8-41-206 precludes an award of medical benefits in the absence of proof that the occupational disease caused a vocational disability within 5 years of the date the claimant retired from Rocky Flats
The respondents assert that the ALJ correctly interpreted the statute to mean that the “date of injury” for an occupational disease is the date of the last injurious exposure. We do not consider the respondents’ argument because we conclude that the statute does not govern a claim for medical benefits § 8-41-206 is not one of limitation, but is an “arbitrary rule of evidence” governing proof of causation for an injury which results in a “disability.” Industrial Commission v Weaver, 81 Colo. 191, 254 P. 444 (1927); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). The term “disability,” refers to the claimant’s inability to work, or inability to return to work except in a restricted capacity United States Fidelity Guaranty Co. v. Industrial Commission, 97 Colo. 102, 46 P.2d 752 (1935); Ricks v. Industrial Claim Appeals Office, supra. The statute precludes the ALJ from finding a causal relationship between a disability and an industrial injury unless the “disability” arises within 5 years of the “date of injury.” Ricks v. Industrial Claim Appeals Office, supra Thus, on its face, the statute does not purport to apply to nondisabling injuries and claims for medical benefits only. To the contrary, the statute is limited to prohibiting proof of “disability” which begins more than five years after the date of injury. This is true even if the need for medical benefits begins more than five years after the “date of injury” of the occupational disease, however that concept might be defined Accordingly, we need not address the claimant’s contention that evidence of scarred lung tissue from the beryllium disease establishes the beginning of a “disability” from the occupational disease
Furthermore, in Wal-Mart Stores, Inc., v. Industrial Claims Appeals Office, 989 P.2d 251 (Colo.App. 1999), the Court of Appeals held that a claimant has sustained a compensable occupational disease and may be awarded medical benefits regardless of whether the claimant also sustained an “onset of disability.” In support of that conclusion, the court noted that the Workers’ Compensation Act is designed to compensate for two distinct losses: “the loss of earning capacity based on the concept of disability, and medical or other costs associated with the injury or disease.” Id. at 253. Further, the court observed that the Act treats medical benefits and disability benefits differently for various purposes, and that the need for medical treatment does not necessarily coincide with the period of disability and the payment of disability benefits. See Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986); Support, Inc., v. Industrial Claim Appeals Office, 968 P.2d 174
(Colo.App. 1998); Wild West Radio Inc. v Industrial Claim Appeals Office, 886 P.2d 304 (Colo.App. 1994) (medical benefits are not “compensation” for purposes of safety rule penalty). In view of the distinction between “disability” benefits and “medical” benefits, we do not believe it proper to extend the evidentiary limitation of § 8-41-206
to encompass proof of the need for medical benefits. See Millard v. Rockwell International, W.C. No. 4-354-307 (April 13, 2000)
Moreover, even if § 8-41-206 could be interpreted to mean that the “date of injury” of an occupational disease coincides with the claimant’s date of “last injurious exposure,” applying the statute to medical benefits could produce substantial hardship. A slowly developing occupational disease may not produce symptoms or require treatment until many years after the claimant’s last exposure to the offending hazard. Indeed, the claimant may not even recognize the existence of the disease prior to leaving employment. Because the Act is designed to compensate for medical expenses independent of disability, we decline to interpret §8-41-206 in a manner which would frustrate this objective. Cf. Ricks v. Industrial Claim Appeals Office
In summary, we do not reach the question of the claimant’s “date of injury” for purposes of § 8-41-206. We simply hold that the statute does not prohibit proof of entitlement to medical benefits regardless of the date of injury
Here, the claimant sought only an award of medical benefits Therefore, the lack of a finding or evidence that the occupational disease has become does not preclude an award. Consequently, we set aside the ALJ’s order and remand the matter for further proceedings concerning the claimant’s entitlement to medical benefits. See Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986) (the employer “on the risk” at the time medical treatment became necessary is liable for medical benefits in the case of an occupational disease)
IT IS THEREFORE ORDERED that the ALJ’s order dated February 4, 1999, is set aside and the matter is remanded to the Division of Administrative Hearings for further proceedings concerning the claimant’s entitlement to medical benefits
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed April 13, 2000 to the followingparties:
Bentura M. Romero, 112 Lincoln St., Longmont, CO 80501
Rockwell International, Boeing North American, Inc., P. O. Box 3707, Seattle, WA 98124-2207
Dow Chemical Company, Dorinco Center, 1320 Waldo Ave., Midland, MI 48642-9712
EGG Rocky Flats, 45 William St., Wellesley, MA 02181-4004
Travelers Indemnity Company of Illinois, Attn: Jerry McClory, P O. Box 173762, Denver, CO 80217-3762
Liberty Mutual Fire Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Albert a. Jerman, Risk Manager, Kaiser-Hill Company, L.L.C., 10808 Highway 93, Unit B, Bldg. 850, Golden, CO 80403-8200
Michael a. Patrick, Esq., 630 Cleveland Ave., Louisville, CO 80027 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202
(For Respondents Rockwell International, Dow Chemical Company, and Travelers Indemnity Company of Illinois)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents EGG Rocky Flats and Liberty Mutual Fire Insurance Company)
BY: A. Pendroy