W.C. No. 4-563-101Industrial Claim Appeals Office.
March 23, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which required them to pay temporary disability benefits without reduction. We affirm.
The ALJ’s pertinent findings may be summarized as follows. The claimant worked at Rocky Flats from 1981 to 1995 as a machinist and utility worker. The claimant returned to Rocky Flats in 1998. In October 2001, the claimant’s job duties changed and 6 hours per day the claimant was required to move waste crates that weighed up to 5,000. To maneuver the crates across uneven floors and through doorways, the claimant had to use his legs to exert substantial and repetitive force. The claimant routinely noticed knee pain at the end of a work-shift of moving crates. The claimant’s condition progressively worsened until he was barely able to walk to the employer’s parking. The claimant was subsequently diagnosed with degenerative arthritis (DA). In May 2003 the claimant underwent a total right knee replacement. Dr. Isaacs opined the claimant’s “work activities during the year prior to October of 2002 caused sufficient deterioration of claimant’s right knee DA to require the total knee arthroscopy.” (Finding of Fact 10). Further the ALJ determined there was no persuasive evidence the claimant performed any off-the-job activities requiring repetitive use of his lower extremities which were comparable to his work activities at Rocky Flats.
Based upon these findings the ALJ determined the claimant proved a compensable occupational disease from the industrial aggravation which caused the right knee to deteriorate more quickly than it would otherwise have deteriorated. The ALJ’s order required the respondents to provide temporary disability benefits commencing October 22, 2002. The ALJ also denied the respondents’ request that the claimant’s compensation be reduced for failure to report the injury within the time provided by § 8-43-102(2), C.R.S. 2003.
I.
On review the respondents first contest the ALJ’s finding that the claimant proved a compensable occupational disease affecting his right knee. In support, the respondents rely on evidence that in August 2002 the claimant reported shoulder problems as a result of moving the heavy crates but did not report any work-related knee problem. Further, when the claimant sought treatment for the knee problems in October 2002, he did not associate his pain with moving the waste crates. Rather, it was not until December 2002 that the claimant sought workers’ compensation benefits on account of knee pain. The respondents’ arguments do not persuade us there is any error in the ALJ’s order.
The claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. 2003. Once the claimant establishes a causal connection between the employment and his disability, the burden shifts to the respondents to prove a non-work related cause of the disease. Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
The question of whether the claimant proved a compensable occupational disease is a question of fact for resolution by the ALJ, and therefore, the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). The claimant is not required to present medical evidence to prove the cause of his condition if the facts and circumstances indicate within a reasonable probability that the disease resulted from or was precipitated by the employment activities. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3
(1968). However, to the extent medical testimony is presented, it is the ALJ’s province to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The ALJ expressly credited the claimant’s testimony concerning his work activities and that testimony contains substantial evidence to support the ALJ’s finding that the claimant suffered a compensable aggravation of his preexisting DA as a result of the heavy labor he performed after October 2001. (See Tr. pp. 13-15, 7-8). The ALJ’s finding is buttressed by the claimant’s testimony that he had no knee problems between 1995 and 1998 when he was teaching. (Tr. p. 20). Moreover, as found by the ALJ, the claimant’s testimony is corroborated by the testimony of his supervisor. (See Greene depo. pp. 19-20).
Admittedly, the claimant stated that he did not report any knee injury when he reported a shoulder injury from moving heavy crates. However, the claimant explained that he did not report the knee pain as work-related at that time because he had been having ongoing knee pain and didn’t attribute it to any specific accident as was true for the shoulder. (Tr. p. 27, 28).
We also reject the respondents’ contention that the record fails to support the ALJ’s Finding of Fact 10. As argued by the respondents, Dr. Isaac stated that he did not know with certainty what caused the claimant’s need for knee surgery. However, Dr. Isaac was familiar with the heavy work performed by the claimant during the year before he sought treatment for knee pain and Dr. Isaac’s understanding of the claimant’s work activities is similar to the claimant’s description of he work. (Isaac depo. p. 9-10). Dr. Isaac testified that within a reasonable degree of medical probability the claimant’s work “could” cause enough deterioration to result in the need for knee replacement surgery because “the more physical work you do, or the more traumatic type work you do, the faster your knee will deteriorate, or whatever joint is involved will deteriorate.” (Isaac depo. p. 10). Because the ALJ expressly credited the claimant’s description of his body mechanics while moving the heavy waste crates, the ALJ reasonably interpreted Dr. Isaac’s testimony to reflect Dr. Isaac’s opinion that the claimant’s work activities were the cause of the deterioration of the claimant’s right knee.
II.
The respondents also contend the ALJ’s findings of fact are insufficient to support the ALJ’s refusal to reduce the claimant’s temporary disability benefits for the claimant’s failure timely to report the injury. We disagree.
Section 8-43-102(2), provides that:
“Written notice of the contraction of an occupational disease shall be given to the employer by the affected employee or by someone on behalf of the affected employee within thirty days after the first distinct manifestation thereof. . . . Actual knowledge by an employer in whose employment an employee was last injuriously exposed to an occupational disease of the contraction of such disease by such employee and of exposure to the conditions causing it shall be deemed notice of its contraction. If the notice required in this section is not given as provided and within the time fixed, the director may reduce the compensation that would otherwise have been payable in such manner and to such extent as the director deems just, reasonable, and proper under the existing circumstances.”
We have previously held that the determination of the “first distinct manifestation” 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 person recognizes the nature, seriousness, and probable compensable nature of the injury. See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Guthrie v. Carpet Mills Outlet Stores, W.C. No. 4-210-005 (September 25, 1995); Row v. Shepard’s McGraw-Hill Inc., W.C. No. 4-180-762 (July 31, 1995). We adhere to our prior conclusions. To recognize the “probable compensable character” of an injury, the claimant must know that the injury is somewhat disabling and must appreciate a causal relationship between the employment and the condition. Temporary disability benefits are payable if the injury causes the claimant to miss more than three shifts from work. Cf. City of Colorado Springs v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0890, February 26, 2004) (claimant who knows probable compensable nature of injury not required to file claim until injury becomes disabling); City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998) Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987).
Because the failure timely to give notice of an occupational disease is an affirmative defense to the respondents’ liability for workers’ compensation benefits, the claimant was not required to prove when he was unaware of the probable compensable nature of the injury. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). Rather, the respondents were required to prove that the claimant was aware of the probable compensable nature of the injury more than 30 days before the injury was reported. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983) (burden of proof determined by assessing which party would be successful if no evidence were presented; then placing burden of proof on the adverse party).
Whether the respondents sustained their burden of proof was a question of fact for resolution by the ALJ. However, the ALJ is not held to a crystalline standard in articulating the basis for his order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Rather, the ALJ’s order is sufficient if the basis for the award is apparent from the findings. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). We have no difficulty ascertaining the basis of the ALJ’s award. Consequently, it is unnecessary to remand the matter for additional findings. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The ALJ determined the claimant did not associate the knee pain with his employment activities as of October 7, 2002 but did recognize the probable compensable nature of the knee pain by December 23, 2002. (Findings of Fact 6, 9). As we read the ALJ’s order, his finding that there was “no persuasive evidence supporting a penalty against the claimant for late reporting of his occupational disease,” is reflective of his determination that the respondents failed to sustain their burden to prove the claimant recognized the probable compensable nature of the knee pain more than 30 days prior to the date the claimant finally reported the injury or the employer had actual notice of the injury. Moreover, the ALJ determination is a plausible inference from the record and, therefore, must be upheld on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 30, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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. 2003. 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 order were mailed to the parties at the addresses shownbelow on March 23, 2004 by A. Pendroy.
Dallas Sherman, 4588 Biscay St., Denver, CO 80249
Kaiser Hill Company, c/o Albert Jerman, Rocky Flats Environmental Technology Site, 10808 Highway 93, Unit B, Bldg. No. 850, Golden, CO 80403-8200
Legal Department, Pinnacol Assurance — Interagency Mail
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Anne Smith Myers, Esq. and Willow I. Arnold, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)