W.C. No. 4-255-539Industrial Claim Appeals Office.
March 10, 1998
ORDER OF REMAND
The respondents seek review of a corrected order of Administrative Law Judge Gandy dated June 9, 1997. The June 9 order incorporated the ALJ’s prior findings of fact and conclusions of law dated May 15, 1997. We set aside the corrected order and remand for entry of a new order.
The issue in this case is whether or not the respondent-employer (Burris), and its insurer, are liable for an occupational disease, and if so, the extent of that liability. It is undisputed that, prior to commencing his employment with Burris in March 1995, the claimant sustained the compensable occupational disease of bilateral carpal tunnel syndrome. The disease was treated by Dr. Bussey, who placed the claimant at maximum medical improvement (MMI) on August 15, 1994. Dr. Bussey noted that the claimant had lost some strength in his right upper extremity, though not enough to justify a permanent impairment rating.
Subsequent to commencing employment with Burris, the claimant again developed pain in his upper extremities. The claimant returned to Dr. Bussey who, in a report dated April 3, 1995, diagnosed “aggravation of pre-existing pronator teres and carpal tunnel syndrome with recent employment at Burris Manufacturing of Greeley.” Dr. Bussey directed the claimant to avoid repetitive use of his upper extremities for three to four weeks.
In a report dated June 14, 1995, Dr. Bussey stated the claimant had reached MMI “for his bilateral pronator teres and carpal tunnel syndrome.” Dr. Bussey went on to state that “the pronator teres syndrome, which is being treated today, was an injury that occurred at Burris Manufacturing,” and he assigned a ten percent upper extremity impairment rating for this condition. Dr. Bussey also stated the following:
“There is no apportionment of this permanent impairment due to previous diagnosis of carpal tunnel syndrome that has been treated surgically. This is a lesion in the forearm, proximal to the carpal tunnel and a separate site of entrapment.”
Based on this evidence, the ALJ concluded that the claimant sustained a last injurious exposure and substantial permanent aggravation of his “disease” while employed by Burris. Specifically, the ALJ found that Dr. Bussey diagnosed an “aggravation of pre-existing pronator teres and carpal tunnel syndrome at Burris Manufacturing.” The ALJ further stated that the opinions of Dr. Bussey were “consistent and credible.” Thus, applying § 8-41-304(1), C.R.S. 1997, the ALJ concluded that Burris and its insurer are liable to pay for the claimant’s ten percent upper extremity impairment without benefit of apportionment.
On review, the respondents contend that the ALJ erred in finding that the claimant sustained a last injurious exposure and substantial permanent aggravation of his occupational disease while employed by Burris. As a corollary to this argument, the respondents contend that they are entitled to apportionment of the claimant’s permanent impairment under § 8-42-104(2), C.R.S. 1997, and that § 8-41-304(1) does not apply. In support, the respondents reason that, if the claimant sustained any occupational disease at Burris, it was not a preexisting disease, but the new disease of pronator teres syndrome. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review of the apportionment issue.
Section 8-41-304(1) provides:
“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 employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”
The purpose of § 8-41-304(1) is to apportion liability for occupational diseases between multiple employers and insurers when the claimant has been exposed to the hazards of the disease in multiple employments, or while multiple insurers were on the risk Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). The statute relieves the claimant from the burden of establishing which employer or insurer is responsible for a particular percentage of the occupational disease. Union Carbide v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978). However, it is inherent in § 8-41-304(1) that the occupational disease under consideration must be the same disease during each period of employment. Otherwise, the rationale for the statute is not applicable.
Thus, if the claimant sustains successive and distinct occupational diseases, § 8-41-304(1) has no application. In such cases, liability for permanent disability is controlled by §8-42-104(2), and principles relevant to apportionment under that statute. See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997) (apportionment of permanent total disability benefits was appropriate under § 8-42-104(2) where claimant sustained the occupational disease of carpal tunnel syndrome, but suffered from numerous preexisting non-industrial diseases); Higgs v. Union Carbide Corp., W.C. No. 4-283-187
(October 16, 1997).
Here, the ALJ apparently concluded that the claimant sustained a single occupational disease, and placed unapportioned liability on Burris and its insurer pursuant to § 8-41-304(1). In so doing, the ALJ found that Dr. Bussey “consistently” took the position that the claimant’s pronator teres syndrome predated his employment with Burris, and that this disease was “aggravated” while the claimant was employed by Burris.
However, in our view, the ALJ’s order fails to recognize and resolve pertinent conflicts in the reports of Dr. Bussey. See §8-43-301(8), C.R.S. 1997. It is true that, on April 3, 1995, Dr. Bussey stated that the claimant had “pre-existing pronator teres and carpal tunnel syndrome.” However, by June 14, 1995, Dr. Bussey indicated that the pronator teres syndrome was an “injury” which occurred at Burris. He further stated that pronator teres syndrome produced a distinct “lesion” from that caused by the prior carpal tunnel syndrome. Further, Dr. Bussey’s reports from 1994 do not indicate that the claimant was diagnosed with pronator teres syndrome.
Thus, contrary to the ALJ’s finding, Dr. Bussey’s reports ar inconsistent with respect to whether or not the claimant incurred pronator teres syndrome as an occupational disease prior to working for Burris. As we have pointed out, resolution of this factual issue is necessary prior to determining what law applies to the apportionment issue. Consequently, on remand, the ALJ must enter specific findings of fact determining the precise nature of the claimant’s occupational disease or diseases, and the employments in which the claimant sustained the disease or diseases. The ALJ shall then apply the correct law pertaining to apportionment.
In reaching this result, we should not be understood as expressing any opinion concerning the weight of the evidence or the propriety of apportionment. We need not reach the other issues raised by respondents since we consider them to be premature at this time.
IT IS THEREFORE ORDERED that the ALJ’s corrected order dated June 9, 1997, 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 ________________________________ Bill Whitacre
Copies of this decision were mailed March 10, 1998 to the following parties:
Dennis C. Stitt, 4490 Yosemite Dr., Greeley, CO 80634
George Bristol, Burris Company, P.O. Box 1747, Greeley, CO 80632
Janet Taylor, AIGCS, P.O. Box 32130, Phoenix, AZ 85018
Britton Morrell, Esq. Miguel Martinez, Esq., 1102 Fifth St., Suite A, Greeley, CO 80631 (For the Claimant)
Clyde E. Hook, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
By: ________________________________