W.C. No. 4-441-744Industrial Claim Appeals Office.
February 7, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed the claim for workers’ compensation benefits based upon an alleged occupational disease. The claimant contends the ALJ failed to resolve pertinent conflicts in the medical evidence, and misapplied the burden of proof by requiring the claimant to prove that the hazards of employment were the sole cause of the her disability. We set the order aside and remand for entry of a new order.
The claimant was employed in a manufacturing plant where as much as 90 percent of her time was spent operating a sewing machine. This job required repetitive use of her right lower extremity. In July 1999 the claimant experienced a sudden onset of low back pain which radiated down her right hip and right leg.
At the hearing, the claimant presented the testimony and report of an independent medical examination physician, Dr. Rook. Dr. Rook opined the claimant’s primary diagnosis is myofascial pain with a secondary component of sacroiliac joint dysfunction. Dr. Rook testified these conditions were caused by the repetitive nature of the claimant’s work activities. Dr. Rook was also aware of the claimant’s degenerative disc disease, but considered this a “tertiary problem.” (Rook Depo. pp. 10-13; Tr. pp. 12, 16).
The claimant’s primary treating physician, Dr. Maisel, diagnosed degenerative disc disease at multiple levels, including a tear of the anulus at L5-S1. In a report dated August 25, 2000, Dr. Maisel stated he disagrees “with Dr. Rook that it is clear that [the claimant’s] work environment is the sole cause of her back discomfort.” (Emphasis added). However, the report goes on to state the following:
It would appear that the cause of Ms. Sanders’ back pain is a combination of degenerative changes that were secondary to use, both in the work and a non-work environment, leading to the degenerative picture as outlined in our previous examinations and MRI. This was then exacerbated by her work environment which I do believe was in part, causative of her symptoms.”
The claimant was also examined by Dr. Janssen, an orthopedic surgeon. Dr. Janssen opined the claimant suffers from multi-level degenerative disc disease which is the result of the natural aging process. Consequently, Doctor Janssen does not believe the claimant’s condition is related to her employment. (Janssen Depo. pp. 45, 50; Report of December 21, 1999).
Purporting to credit the opinions of Dr. Maisel and Dr. Janssen over those of Dr. Rook, the ALJ found the claimant failed to prove by substantial evidence that her back condition resulted directly from her employment and followed as a natural incident of the work. Consequently, the ALJ denied the claim.
On review, the claimant contends the ALJ’s reliance on the opinion of Dr. Maisel as authority for denying the claim fails to resolve conflicts in the evidence and is contrary to law. The claimant reasons that under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), she was not required to prove that occupational hazards of her disease were the sole cause of her disability. Consequently, the claimant asserts the opinion of Dr. Maisel actually supports a finding of compensability, and the burden of proof shifted to the respondents to demonstrate the degree to which non-occupational hazards caused the disability. The respondents did not file a brief in opposition to the claimant’s brief. Because we agree with the claimant that the ALJ failed to resolve pertinent conflicts in the evidence, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2001.
The following language from our decision in Chasteen v. King Soopers, Inc., W.C. No. 4-445-608 (July 11, 2001), is pertinent to resolution of the issues:
Section 8-40-201(14), C.R.S. 2000, defines an occupational disease as one resulting directly from the employment or the conditions under which the work was performed, is a natural incident of the work and is a result of the exposure occasioned by the employment, can be fairly traced to the employment as a proximate cause, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.” The requirement that the claimant not be “equally exposed outside of the employment” effectuates the “peculiar risk” test and requires that the risk or hazard causing the disease be more prevalent in the claimant’s workplace than in everyday life or in other occupations. Anderson v. Brinkhoff, 859 P.2d at 824. Thus, if the disease has a single cause, the statute calls for a relatively straightforward factual determination requiring the ALJ to compare the prevalence of the risk factor in and outside of the work environment.
However, the Anderson court also held the statute does not preclude recovery if the hazards of employment “cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought.” Thus, the statute does not require that the “hazardous conditions of employment be the sole cause of the disease or aggravation.” Id. at 824. Instead, the court held that if there are dual or concurrent causes of an occupational disease, and there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, “the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.” Id. at 825. The court emphasized the statute does not “invite a weighing of the various hazards to which the worker has been exposed throughout his lifetime — some occupational, some not — in determining whether a particular diseases is occupational.” Id. at 825.
Moreover, if the claimant succeeds in establishing that an occupational hazard to some reasonable degree caused, intensified, or aggravated a disease, the respondents bear the burden of proving the extent to which non-occupational hazards have contributed to the claimant’s disability. This is true because § 8-40-201(14) creates an exception to the general rule of compensability, the burden of proof is generally on the party asserting the affirmative of a proposition, and because policy considerations favor placing the burden of proof on the party whose actions resulted, at least in part, in the claimant’s inability to apportion between various causes. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Applying these principles here, we agree with the claimant that the ALJ’s reliance on the opinion of Dr. Maisel as authority for denying the claim fails to resolve pertinent conflicts in the evidence and fails to recognize principles established in Anderson v. Brinkhoff. Although Dr. Maisel did not believe the repetitive activity required in the claimant’s employment was the sole cause of the claimant’s condition, he did opine the claimant’s degenerative disc disease was “exacerbated by her work environment which I do believe was, in part, causative of her symptoms.” (See Finding of Fact 8). Thus, if Dr. Maisel’s opinion is credited, the claimant established that to some extent her disability was caused by the hazards of her employment, and that she sustained a compensable occupational disease under Anderson v. Brinkhoff. Moreover, the burden of proof would then shift to the respondents to establish the extent to which non-occupational hazards caused the claimant’s disability.
It follows, contrary to the ALJ’s findings, that the opinions of Dr. Maisel and Dr. Janssen are incompatible with regard to the issue of compensability. Consequently, on remand, the ALJ shall reconsider the pertinent evidence and resolve the conflicts in the evidence concerning whether or not the claimant has established a compensable occupational disease. In directing the remand, we should not be understood as expressing any opinion concerning the weight of the evidence or the credibility of the medical experts. If the ALJ determines the claimant sustained a compensable occupational disease, the ALJ shall then determine whether the claimant is entitled to an award of temporary disability and medical benefits under the evidence submitted at the hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 2000, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed February 7, 2002 to the following parties:
Eva Sue Sanders, 839 E. Costilla, Colorado Springs, CO 80903
Quest Mtn. View Manufacturing, Inc., 408 Russell Ave., Walsenburg, CO 81089-2042
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Richard E. Falcone, Esq., 3510 Galley Rd., #110, Colorado Springs, CO 80909 (For Claimant)
J. Barton Maxwell, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy