W.C. Nos. 4-359-608, 4-422-648Industrial Claim Appeals Office.
September 18, 2001
FINAL ORDER
Respondents Agland, Inc. (Agland) and its insurer, Colorado Compensation Insurance Authority (collectively CCIA respondents), seek review of an order of Administrative Law Judge Friend (ALJ) holding them liable for medical and temporary disability benefits. The CCIA respondents contend the evidence does not support the ALJ’s finding the claimant sustained a last injurious exposure to her occupational disease while employed by Agland. We affirm the order in part, set it aside in part, and remand for entry of a new order.
This matter was before us previously. Our Order of Remand dated December 20, 2000, contains a brief statement of the facts, and that statement is incorporated herein. Our order directed the ALJ to apply the preponderance of the evidence standard of proof, and determine whether or not the claimant sustained a compensable occupational disease while employed by respondent Sykes Enterprises, Inc. (Sykes), as insured by respondent Vigilant Insurance Co. (collectively Vigilant respondents). If so, we ordered the ALJ to determine “whether the claimant proved a last injurious exposure and substantial permanent aggravation of the disease while [subsequently] employed by Agland.”
In the order dated May 7, 2001, the ALJ concluded the claimant sustained an occupational disease of bilateral carpal tunnel syndrome while employed by Sykes. The ALJ found the claimant’s employment as a customer service representative and computer tech lead required data entry involving “repetitive use of her upper extremities.” However, the ALJ also found the claimant terminated her employment at Sykes on May 19, 1997 for reasons unrelated to her carpal tunnel syndrome. In fact, the claimant was not diagnosed with carpal tunnel syndrome until July 1997.
After leaving Sykes the claimant remained unemployed until September 1998, when she accepted employment with Agland. The claimant was initially employed as a customer service representative, but became a cashier in a convenience store in November 1998. The convenience store job required the claimant to perform various duties including scanning, using a calculator, stocking, and cleaning tables. However, the ALJ found the “frequency of breaks between transactions” allowed for “non-repetitive use of the upper extremity,” and the claimant’s job “did not involve repetitive motions.” During the employment with Agland, particularly as a cashier, the claimant experienced increasing symptoms of carpal tunnel syndrome, including hand pain, upper extremity pain, and pain in the shoulder, neck, and back. The claimant was again diagnosed with carpal tunnel syndrome in January 1999, and on May 27, 1999, she was restricted from continuing work as a cashier. On September 16, 1999, the claimant underwent surgical repair of the right wrist, and has received a recommendation for surgery on the left wrist.
The ALJ found that although the claimant sustained the occupational disease of bilateral carpal tunnel syndrome while employed by Sykes, that employment did not cause the need for any medical treatment. Rather, the ALJ concluded the claimant proved the hazards of her employment at Agland “intensified or aggravated” the occupational disease so as to necessitate the need for medical treatment after the claimant began work with Agland. Further, the ALJ found the disability which the claimant experienced after leaving her employment at Agland was “not the natural and proximate result of her occupational disease” suffered at Sykes Enterprises, but rather was the result of her aggravated condition that resulted from the duties of her employment at Agland. Further, the ALJ stated the claimant was “injuriously exposed at Agland, and suffered a substantial permanent aggravation of the disease while employed by Agland.” Consequently, the ALJ ordered the CCIA respondents to commence payment of temporary total disability benefits commencing May 21, 1999.
On review, the CCIA respondents contend substantial evidence does not support the ALJ’s conclusion the claimant sustained a last injurious exposure to her occupational disease while employed by Agland. Because we conclude the ALJ’s findings of fact are insufficient to support appellate review, we remand for entry of a new order on this issue. Section 8-43-301(8), C.R.S. 2001.
Section 8-41-304(1), C.R.S. 2001, provides as follows:
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.
This statute was adopted by the General Assembly to apportion liability in occupational disease cases and to impose liability on the last employer or insurer in cases where the disease was incurred over a period of employment encompassing several employers or insurers. The statute was designed to relieve the worker from the onerous, if not impossible, task of proving the extent to which each employment caused the disability. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). Further, the “last injurious exposure” element and the “substantial permanent aggravation” element reflect distinct requirements for imposing liability on a subsequent employer or insurer. A “last injurious exposure” occurs when the claimant is exposed to a “concentration” of the hazards of the disease such that prolonged exposure to the hazards would be sufficient to cause the disease. However, there is no requirement the employment in which the last injurious exposure occurs actually be a contributing cause to the disease. In contrast, the “substantial permanent aggravation” requirement focuses on the “magnitude and effect” of the last injurious exposure and requires that it result in a substantial and permanent aggravation of the previous condition. However, the substantial permanent aggravation test does not impose a requirement that the last employment constitute a “significant contributing cause” of the disease. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, the ALJ’s findings of fact are insufficient for us to conclude that he properly applied the last injurious exposure element in assigning liability to the CCIA respondents for the claimant’s temporary disability benefits. Although the ALJ’s order mentions the term “last injurious exposure,” it does not contain any finding that the claimant’s duties at Agland would, in their own right, have been sufficient to cause bilateral carpal tunnel syndrome in the event of prolonged exposure. Instead, the order finds that the claimant’s employment at Agland “intensified or aggravated [the claimant’s] disability to some reasonable degree,” and the claimant’s disability following her employment at Agland was not a “natural and proximate result of her occupational disease suffered at Sykes.”
However, the finding that the claimant’s employment at Agland “aggravated” the claimant’s occupational disease focuses on the “magnitude and effect” of the claimant’s exposure to the hazards of her disease, and therefore addresses the issue of substantial permanent aggravation. The mere fact that exposure to certain hazards aggravated a preexisting disease falls short of a finding that the “concentration” of the hazards was sufficient to cause the disease in the event of prolonged exposure. Neither does it matter that the claimant’s disability was not a “natural and proximate result” of her employment with Sykes. As noted, the entire purpose of the last injurious exposure rule is to relieve the claimant of the burden of proving the relative contributions of various employments to the disability in cases of occupational disease. Robbins Flower Shop v. Cinea, supra.
More importantly, the ALJ’s findings of fact lead us to question whether the last injurious exposure rule was properly applied. In Finding of Fact 2, the ALJ expressly found that the claimant’s employment at Sykes “involved repetitive use of her upper extremities.” In Finding of Fact 14, the ALJ found the claimant’s work as a cashier for Agland “did not involve repetitive motions” of the upper extremities. These factual findings most directly address the relative “concentrations” of the hazards to which the claimant was exposed in the two employments. However, the findings tend to suggest the claimant’s duties at Agland would not have been sufficient to cause the disease in the event long exposure because they were not “repetitive” in nature.
Although the ALJ’s order refers to the “last injurious exposure” rule, that finding is purely conclusory in nature and is not supported by specific findings of fact sufficient to satisfy us that the ALJ correctly applied law. See Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969). Therefore, the matter must be remanded for additional findings of fact and conclusions of law specifically determining whether or not the claimant sustained a last injurious exposure to the occupational disease of bilateral carpal tunnel syndrome while employed by Agland. Implicit in this decision is our determination that the record contains sufficient evidence from which the ALJ might infer as a matter of fact that a last injurious exposure occurred at Agland. However, we should not be understood as expressing any opinion concerning that factual issue.
Insofar as the order requires the CCIA respondents to pay medical benefits incurred after the claimant was employed by Agland, we find no error. The last injurious exposure rule does not apply to awards of medical benefits. Instead, liability for medical benefits is governed by the ordinary rules of causation. See University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001). Here, the record contains substantial evidence supporting the ALJ’s finding that the claimant’s employment at Agland aggravated the claimant’s carpal tunnel syndrome and caused the need for medical treatment, including surgery. Thus, the order must be affirmed insofar as it awards medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 7, 2001, is set aside insofar as it orders the CCIA respondents to pay temporary disability benefits. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED the ALJ’s order is affirmed insofar as it orders the CCIA respondents to pay medical benefits.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
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. 2000. 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 September 18, 2001 to the following parties:
Dorie L. Troutt, 28500 Weld County Road 78, Eaton, CO 80615
Sykes Enterprises, Inc., _ Human Resources, 100 N. Tampa St., #3900, Tampa, FL 33602-5835
Agland, Inc., P. O. Box 338, Eaton, CO 80615-0338
Vigilant Insurance Company, Chubb Sons Insurance Company, 9155 E. Nichols, #100, Englewood, CO 80112
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents Agland, Inc., and CCIA)
Rebecca A. Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Katherine Markheim Lee, Esq., and Jonathan A. Decker, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents Sykes Enterprises, Inc. and Vigilant Insurance Company)
David L. Smith, Esq., 600 17th St., #1600, Denver, CO 80202
BY: A. Pendroy