W.C. Nos. 4-359-608 4-422-648Industrial Claim Appeals Office.
December 20, 2000
ORDER OF REMAND
Respondents Agland Inc., and its insurer Colorado Compensation Insurance Authority (Agland respondents), seek review of an order of Administrative Law Judge Erickson (ALJ) holding them liable for temporary disability and medical benefits stemming from the claimant’s occupational disease. The Agland respondents argue, inter alia, the ALJ misapplied the burden of proof in determining the claimant sustained an occupational disease, and in finding that the disease was substantially and permanently aggravated during the claimant’s employment with Agland. We remand for entry of a new order.
In 1997, the claimant was employed by respondent Sykes Enterprises, Inc., which was insured by respondent Vigilant Insurance Co. (Sykes respondents). The claimant testified her duties as a customer service representative, and later a supervisor, required substantial amounts of data entry on a computer keyboard. The claimant stated that she began to experience “tingling” in both hands in January 1997. The claimant quit her employment at Sykes in May 1997 for reasons unrelated to her condition. The claimant was diagnosed with bilateral carpal tunnel syndrome in July 1997.
The claimant testified she remained unemployed until September 1998, when she obtained work with Agland. In November 1997, the claimant became a cashier for Agland, and allegedly experienced a substantial increase in her upper extremity and back symptoms. In May 1999, the claimant became temporarily totally disabled. She underwent a carpal tunnel release of the right wrist in September 1999, and a physician has recommended the same surgery for the left hand.
At hearing, the central issues concerned whether or not the claimant proved a compensable occupational disease arising out of her employment with Sykes and, if so, whether the Agland respondents are liable for the claimant’s benefits because the claimant sustained a last injurious exposure and substantial permanent aggravation of her condition while employed by Agland. Section 8-41-304(1), C.R.S. 2000. Although the ALJ made few factual findings directly addressing the issue, he apparently concluded the claimant sustained the compensable occupational disease of bilateral carpal tunnel syndrome while employed by Sykes. He further determined the claimant proved by “credible, persuasive evidence that she was last injuriously exposed to the hazards of her occupational disease and suffered a substantial permanent aggravation thereof while employed with” Agland. Consequently, the ALJ imposed liability on the Agland respondents.
On review, the Agland respondents argue the ALJ’s order reflects a misapplication of the burden of proof. In support, these respondents note that in Conclusion of Law 1 the ALJ correctly stated the claimant had the burden of proof, and that assessment of the weight, credibility, and sufficiency the evidence was the prerogative of the ALJ. However, in Conclusion of Law 2, the ALJ stated that “substantial evidence is the quantum of probative evidence which a rational fact finder would accept as a adequate to support a conclusion without regard to the existence of conflicting evidence.” We agree with the Agland respondents that the matter must be remanded to the ALJ because the order reflects a possible misapplication of the burden of proof.
In workers’ compensation cases, ALJ’s are, in most instances, charged with making pertinent factual determinations, including those concerning liability for benefits, under a preponderance of the evidence standard. See § 8-43-201, C.R.S. 2000. Under this standard, the ALJ assesses the credibility of the witnesses, the weight of the evidence, and determines whether the burden of proof has been satisfied. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In contrast, the substantial evidence test establishes the standard of review applied by the Industrial Claim Appeals Panel and the appellate courts when reviewing an ALJ’s findings of fact. Section 8-43-301(8), C.R.S. 2000; §8-43-308, C.R.S. 2000; Metro Moving and Storage Co. v. Gussert, supra. Under the substantial evidence standard, a reviewing body must determine whether the ALJ’s factual findings are supported by the evidence in the record, and must do so by viewing the evidence as a whole and in a light most favorable to the prevailing party. Further, the reviewing court may not interfere with the ALJ’s credibility determinations and the plausible inferences he drew from the evidence.
Confusing the preponderance of the evidence standard and the substantial evidence standard may distort the burden of proof and give undue weight to some evidence. For instance, in City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985), the supreme court held the court of appeals erred in stating that “any reasonable doubt as to whether a compensable injury arises out of and in the course of employment must be resolved in favor of a claimant.” Th Streeb court stated the court of appeals erroneously created a “virtual presumption of compensability” and misapplied the preponderance of the evidence burden of proof. See also, Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, at n. 6 (Colo. 1983).
Here, the ALJ may have committed the same error as the court of appeals in Streeb. The juxtaposition of Conclusion of Law 1 and Conclusion of Law 2 permits the inference the ALJ found the claimant’s testimony and supporting medical evidence constituted “substantial evidence,” and, therefore, a “preponderance” of the evidence. Further, the ALJ may have credited the claimant’s testimony and evidence without evaluating the weight and credibility of the conflicting evidence presented by the Sykes respondents and the Agland respondents. Indeed, it is difficult to explain the ALJ’s reference to the substantial evidence test in any other way. In light of this ambiguity concerning the standard of proof applied by the ALJ, we conclude the matter should be remanded for entry of a new order which correctly applies the preponderance of the evidence standard of proof concerning whether or not the claimant sustained a compensable occupational disease while employed by Sykes and, if so, whether the claimant proved a last injurious exposure and substantial permanent aggravation of the disease while employed by Agland.
Because the Agland respondents’ other arguments concerning the sufficiency of the findings and the evidence may be rendered moot by the new order on remand, we do not consider those arguments here.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 24, 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
____________________________________ Dona Halsey
Copies of this decision were mailed December 20, 2000 to the following parties:
Dorie Troutt, 28500 Weld County Road 78, Eaton, CO 80615
Agland, Inc., P. O. Box 338, Eaton, CO 80615-0338
Sykes Enterprises, Inc., Attn: Human Resources, 100 N. Tampa St., #3900, Tampa, FL 33602-5835
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents Agland, Inc. and Colorado Compensation Insurance Authority (CCIA) Vigilant Insurance Company, Connie Risser, Chubb Sons Insurance Company, Waterview Two, 9155 E. Nichols, #100, Englewood, CO 80112
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., #1600N, Denver, CO 80202
BY: A. Pendroy