W.C. Nos. 4-462-729, 4-471-878Industrial Claim Appeals Office.
May 20, 2003
FINAL ORDER
Superior National Insurance Company (Superior) and its insured, (collectively the Superior respondents) seek review of a Corrected Order of Administrative Law Judge Henk (ALJ) which determined the claimant suffered an occupational disease and required Superior to pay temporary total disability and medical benefits. We affirm.
The claimant worked for the respondent-employer as a dental hygienist from 1985 to June 2000. Pinnacol Assurance was the insurer on the risk from January 1, 1994 through December 31, 1995. Superior was the insurer from January 1, 1999 through October 25, 2000.
The ALJ found the claimant’s employment required repetitive upper extremity activities which caused the claimant to develop an occupational disease that affected her upper extremities. The ALJ determined the onset of disability from the disease occurred in October 1999. In support, the ALJ found that in 1985 the claimant worked 2 days per week, in February 1998 the claimant increased her work schedule to 3 days a week, and in October 1999 the claimant changed her schedule to 2 days a week due to symptoms in her upper extremity. Further, the ALJ found the claimant quit the employment in June 2000 as a result of pain and numbness in her upper extremities.
Moreover, the ALJ determined the claimant’s condition was substantially and permanently aggravated up to June 2000. Therefore, in an order dated November 21, 2002, the ALJ required the Superior respondents to pay for treatment of the occupational disease after January 1, 1999. The order also required the respondents to pay all stipulated temporary total disability benefits. The ALJ issued a Corrected Order on December 4.
On appeal of the Corrected Order the Superior respondents contend the ALJ erroneously found the October 1999 injury was a substantial and permanent aggravation of the claimant’s “prior injury” and not the natural progression of the “prior injury.” We reject this argument.
To recover workers’ compensation benefits the claimant must prove she sustained an injury arising out of and in the course of the employment. Section 8-41-301(1)(b), C.R.S. 2002. The term “injury” encompasses both accidental injuries and occupational diseases. CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982). Where an “injury” is traceable to a particular time, place and cause the claimant has sustained an “industrial accident.” Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). In contrast, where an “injury” is acquired in the ordinary course of employment and is a natural incident of the employment, the claimant has sustained an “occupational disease.” Section 8-40-201(14), C.R.S. 2002; Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993).
Once the claimant proves a compensable accidental injury, the respondents are liable for the natural and proximate consequences of the injury. See Vanadium Corporation of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957). However, a compensable aggravation which triggers the claimant’s subsequent disability or need for medical treatment is generally considered a new injury. Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
The determination of whether the claimant sustained an occupational disease or an accidental injury is factual in nature, and therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record, and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. 2002; Campbell v. IBM Corporation, supra. However, the ALJ is not held to a crystalline standard in articulating her findings of fact and we may consider findings that are necessarily implied by the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The ALJ’s order is not a model of clarity. However, the ALJ did not find the claimant suffered two injuries. Instead, the ALJ found the claimant’s medical problems are the result of a single occupational disease to her upper extremities.
Section 8-43-304(1), C.R.S. 2002, provides that:
“Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any on the risk when such employee was last so exposed under such employment shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.” (Emphasis added).
The purpose of § 8-41-304(1) is to assign liability for an occupational disease where the claimant has been exposed to the hazards of the disease during successive employments, or there have been multiple insurers on the risk. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). However, § 8-41-304(1) presumes that compensability of the disease has been established prior to the time the statute comes into play. Thus, the statute is not applicable where there is only one employer or insurer after the date of injury.
For purposes of awarding indemnity benefits, the claimant does not suffer a compensable occupational disease until the claimant experiences the “onset of disability.” See Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). Accordingly, where the issue is temporary disability benefits, the date the claimant suffers the onset of disability is critical to whether § 8-41-304(1) is applicable.
Here, the Superior respondents incorrectly allege the ALJ found the claimant suffered one onset of disability when Pinnacol Assurance was on the risk and a second onset in 1999. To the contrary the ALJ found the claimant did not suffer the onset until 1999. We perceive no basis to disturb the ALJ’s determination.
Contrary to the respondents’ contention the need for medical treatment is not sufficient to establish the onset of disability unless the medical provider imposes restrictions which preclude the claimant from performing her regular employment. This is true because the term “onset of disability” refers to a physical incapacity. Incapacity may also be evidenced by lost time from work, or reduced efficiency in the claimant’s performance of her regular duties. See Henderson v. RSI, Inc., 824 P.2d 91
(Colo.App. 1991); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118
(Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659
(Colo.App. 1986).
Admittedly, the claimant was treated for upper extremity pain in 1994. However, there is substantial evidence in the claimant’s testimony that she continued to perform her regular employment duties until October 1999. Moreover, the respondents’ contention that the claimant’s worsened condition was a natural progression of the symptoms that began in 1994 is consistent with the ALJ’s finding that the disease gradually progressed until October 1999 when it became disabling. Therefore, we are bound by the ALJ’s finding that the onset of disability occurred in October 1999.
There is no allegation the claimant was injuriously exposed after October 25, 2000, Under these circumstances,§ 8-41-304(1) is not applicable and the ALJ’s finding support the conclusion the Superior respondents are liable for indemnity benefits due the claimant on account of the occupational disease.
However, in claims based upon an occupational disease the Workers’ Compensation Act treats medical and disability benefits differently Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. This is because the need for medical treatment does not necessarily coincide with onset of disability and, it would be unfair to award medical benefits for an industrial accident that is not disabling but deny medical treatment for an occupational disease just because it has not yet caused a disability. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
The courts have held that liability for medical benefits in a claim based on an occupational disease is determined under the usual rules governing liability for workers’ compensation benefits. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Specifically, the insurer “on the risk” is the carrier which insured the employer when the employment caused, aggravated or accelerated the occupational disease to the point that medical treatment was necessary.
Causation is a question of fact to be determined by the ALJ and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra; §8-43-301(8). We note that the claimant is not required to present medical evidence to prove the cause of the condition. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). To the contrary the claimant’s testimony, if credited, may be sufficient to establish the requisite nexus between the employment and the disputed treatment. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent expert medical testimony is presented, it is the ALJ’s sole prerogative to assess its weight and sufficiency. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Insofar as the medical testimony is inconsistent or subject to conflicting interpretation, we are bound by the ALJ’s resolution of those inconsistencies and the plausible inferences the ALJ drew from the conflicts. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). This is true because the ALJ is considered to possess expert knowledge which renders her competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Here, the ALJ resolved the causation issue against the Superior respondents based upon a finding that the claimant’s condition was substantially and permanently aggravated until she left work in June 2000 and that the “permanent and substantial aggravation caused the need for medical treatment including but not limited to bilateral carpal tunnel release surgeries.” (Conclusions of Law 2). The ALJ’s finding is supported by the claimant’s testimony and the opinions of Dr. Hughes. Consequently, the ALJ’s finding must be upheld on review and it is immaterial the record contains some medical evidence which, if credited, might support a contrary result. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985)
The respondents remaining arguments have been considered and do not alter out conclusions.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated December 4, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 20, 2003 to the following parties:
Cheryl Seylhouwer, 12277 E. Lasalle Pl., Aurora, CO 80014
Kristin F. Robbins, D.D.S., 400 S. Colorado Blvd., #720, Denver, CO 80222
Legal Department, Pinnacol Assurance — Interagency Mail
Superior National Insurance Company, c/o Michael Kramish, Claims Adjuster, P. O. Box 6500, Englewood, CO 80155
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Clyde E. Hook, Esq. and Gary L. Fleming, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondent Employer and Superior National Insurance Company)
Joel M. Pollack, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent Employer and Pinnacol Assurance)
BY: A. Hurtado