W.C. No. 4-180-762Industrial Claim Appeals Office.
July 31, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which determined that the claimant sustained a compensable occupational disease, awarded benefits, and denied a penalty for the claimant’s failure to report the injury. We affirm.
Relying principally on the testimony of the claimant, and the claimant’s physicians Dr. Whittington and Dr. Royce, the ALJ found that the claimant sustained a compensable occupational disease. Specifically, the ALJ found that the claimant’s job required him to perform frequent and heavy lifting. The ALJ credited medical evidence that, over time, the heavy lifting damaged the claimant’s back and caused multiple disc herniations.
Under these circumstances, the ALJ concluded that the claimant was entitled to temporary disability benefits commencing March 5, 1993, the last day the claimant was employed by the respondent-employer (Shepard’s). The ALJ also denied the respondents’ assertion that the claimant should be subjected to a penalty, under § 8-43-103(2), C.R.S. (1994 Cum. Supp.), for failure timely to report his disease in writing. Other pertinent facts will be discussed below.
I.
The respondents’ first contention is that the ALJ erred in considering the deposition testimony of Dr. Whittington. The respondents correctly point out that Dr. Whittington’s deposition was not offered into evidence at the time of the hearing. However, we find no reversible error.
Pursuant to C.R.E. 103(a), error may not be predicated upon the admission of evidence “unless a substantial right of the party is affected.” See § 8-43-210, C.R.S. (1994 Cum. Supp.). Here, we conclude that the ALJ’s consideration of the deposition testimony was harmless error, because Dr. Whittington’s opinions were already presented to the ALJ in Dr. Whittington’s report dated August 12, 1993.
The record contains Dr. Whittington’s August 12, 1993 report. In the August 12 report, Dr. Whittington opines that the claimant’s condition was caused by heavy lifting at work, and rejects the possibility that the claimant’s condition is attributable to a bike ride. The ALJ’s findings of fact concerning Dr. Whittington’s deposition testimony indicate that the testimony mirrored the contents of the August 12 report. Under these circumstances, we fail to perceive how the respondents were prejudiced, in any substantial way, by the ALJ’s improper consideration of the deposition.
II.
The respondents next contend that the claimant failed to satisfy his burden to prove the existence of an occupational disease. Specifically, the respondents assert that the claimant failed to present evidence that his disease did not come “from a hazard to which [he] would have been equally exposed outside of the employment,” as required by §8-40-201(14), C.R.S. (1994 Cum. Supp.). In support of this proposition, the respondents cite the testimony of Dr. Royce that the etiology of the claimant’s back condition is “multifactorial” and, to some extent, the result of activities of daily living. We reject this argument.
The respondents’ argument notwithstanding, the claimant did not bear the burden to prove that his condition did not come from hazards to which he was equally exposed outside of employment. Rather, the claimant was required to establish the existence of the disease, that it was directly and proximately caused by the conditions of his employment, and the extent of the resulting disability. Once the claimant established these elements, the respondents bore the burden of proving the existence of non-industrial contributors to the disease, and the extent to which these contributors were the cause of the claimant’s disability. Cowin and Co. v. Medina, 860 P.2d 535 (Colo.App. 1992); Lucero v. Jackson Ice Cream,
W.C. No. 4-170-105, January 6, 1995.
The medical evidence which the ALJ found persuasive supports the conclusion that the heavy lifting required in the claimant’s work aggravated or accelerated his degenerative back condition. Consequently, the claimant met his initial burden of proof to establish a compensable occupational disease, and disability resulting from the disease. However, the ALJ could, and did, conclude that the respondents failed to demonstrate the extent to which alleged non-industrial hazards contributed to the claimant’s disability. Consequently, there was no error in the ALJ’s order or her allocation of the burden of proof. Cowin and Co. v. Medina, supra.
III.
The respondents next contend that the ALJ made inadequate findings of fact to support her conclusion that the claimant was last injuriously exposed to his occupational disease on March 5, 1993. The respondents assert that the record contains evidence to support the conclusion that the claimant was last injuriously exposed to his disease while working at King Soopers, subsequent to leaving Shepard’s. We reject this argument.
The parties apparently agree that this claim is governed by the provisions of § 8-41-304(1), C.R.S. (1994 Cum. Supp.). The statute places liability for an occupational disease on the employer or insurer “in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof.” Under §8-41-304(1), an employer is liable only if both the “last injurious exposure” requirement and the “substantial permanent aggravation” requirement are met. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). A last injurious exposure exists if the claimant was exposed to a concentration of the “hazard” sufficient to cause the disease if continued over a prolonged period of time. Monfort, Inc. v. Rangel, supra. The existence of last injurious exposure is largely a factual matter for the ALJ. See Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986).
Here, the ALJ found that the claimant was last injuriously exposed to his disease on March 5, 1993, his last full day of employment with Shepard’s. Moreover, the ALJ found that the claimant’s duties at King Soopers were within the medical restrictions imposed by Dr. Whittington. The respondents’ arguments notwithstanding, these findings are sufficient to support the ALJ’s order.
It may be logically inferred that Dr. Whittington would not allow the claimant to perform activities which would be sufficient to cause his disease if continued over a prolonged period. Under such circumstances, the ALJ could conclude that the claimant’s duties at King Soopers, which involved bagging groceries, were not comparable to the heavy activities he performed for Shepard’s. Moreover, the mere fact that the claimant’s work at King Soopers was sufficient to illicit symptoms and cause him to leave that employment does not necessarily lead to the conclusion that the King Soopers work would have caused the disease in the first place.
It is true, as the respondents argue, that the record might support contrary findings and conclusions. However, the ALJ’s findings constitute a plausible interpretation of the evidence. Therefore, we may not substitute our judgment for hers concerning the inferences to be drawn Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). In light of this conclusion, we need not consider the claimant’s argument that the evidence would not support a finding of substantial permanent aggravation, regardless of the last injurious exposure issue.
IV.
The respondents’ final argument is that the ALJ erred in declining to assess a penalty, under § 8-43-102(2), for the claimant’s failure to report the disease in writing. The respondents argue that, although the claimant is seeking benefits for an injury which he alleges occurred on March 8, 1993, he did not sign a written report of injury until July 26, 1993, well beyond the thirty day limitation. This argument misperceives the basis the ALJ’s order.
Under § 8-43-103(2), the claimant is required to give “written notice of the contraction of an occupational disease” to the employer “within thirty days after the first distinct manifestation thereof.” However, this requirement is subject to the general principle that the time for providing notice of an injury does not begin to run until “the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury.” Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981); Lucero v. Jackson Ice Cream, supra.
Here, the ALJ found that the claimant did not recognize the probable compensable nature of his condition until Dr. Whittington issued the August 12, 1993 report linking the claimant’s condition to the heavy lifting at work. This conclusion is supported by the claimant’s testimony that, initially, he believed his back problems were caused by a prior injury, and did not contemplate a separate injury until he discussed the matter with his doctors in July or August 1993. (Tr. pp. 41-42). Under these circumstances, the record supports the ALJ’s determination that the respondents received timely written notice of the claimant’s contraction of the occupational disease.
IT IS THEREFORE ORDERED that the ALJ’s order, dated October 24, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 31, 1995 to the following parties:
David Row, P.O. Box 15734, Colorado Springs, CO 80935
McGraw Hill, Inc., 420 N. Cascade Ave., Colorado Springs, CO 80903-3394
Lumbermen’s Mutual Casualty Co., % Kemper Ins. Co., P.O. Box 5347, Denver, CO 80217
John P. Craver, Esq. John Lebsack, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5529 (For the Respondents)
Cynthia M. Pring, Esq., 802 S. Tejon, Colorado Springs, CO 80903 (For the Claimant)
By: __________________________