W.C. No. 4-210-135Industrial Claim Appeals Office.
June 6, 1996
FINAL ORDER
The respondents Home Base and CNA Insurance (CNA), seek review of an order of Administrative Law Judge Wheelock (ALJ) concerning liability for the claimant’s occupational disease. The respondents contend that the ALJ erred in failing to impose liability on Transamerica Insurance Company (Transamerica). We disagree, and therefore, affirm.
It is undisputed that, on or after July 1, 1991, the claimant sustained an occupational disease as a result of her employment at Home Base. The injury, diagnosed as bilateral carpal tunnel syndrome (CTS), was surgically treated by Dr. McCarthy on April 6, 1992 and May 13, 1992. As a result of the CTS, the claimant missed 15 days of work prior to July 1, 1992. Thereafter, the claimant returned to work at Home Base until March 1994, when she began employment at Hugh M. Woods.
Prior to July 1, 1992, Home Base was insured for workers’ compensation by CNA. Effective July 1, 1992, Home Base was insured by Transamerica.
On May 12, 1994, the claimant was reexamined by Dr. McCarthy for continuing complaints of hand pain. EMG tests showed improvement from 1992 EMG studies. However, the EMGs still showed some abnormality.
Based upon these circumstances, the ALJ determined that the claimant did not suffer a substantial permanent aggravation of her condition after July 1, 1992. Consequently, the ALJ determined, pursuant to the statutory language currently codified at § 8-41-304(1), C.R.S. (1995 Cum. Supp.), that CNA is solely liable for the claimant’s temporary disability and medical benefits.
On appeal, the respondents contend that liability between successive insurers is governed by the “last injurious exposure” rule, and that it is immaterial whether the claimant suffered a “substantial permanent aggravation.” In support, the respondents cite Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993), and Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986). Relying on Royal Globe, the respondents further contend that Transamerica is liable for all compensation and medical benefits due the claimant after July 1, 1992, when Transamerica became the insurer “on the risk.” We reject these arguments.
Section 8-41-304(1), C.R.S. (1995 Cum. Supp.), is a provision of Senate Bill 91-218 (SB 218). Under the law as it existed prior to SB 218, the employer in whose employment the claimant suffered a “last injurious exposure” to the hazards of an occupational disease, is solely liable for the claimant’s compensation. See Royal Globe Insurance Co. v. Collins, supra; Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978).
However, SB 218 amended § 8-41-304(1) to provide that:
“the employer in whose employment the employee was last injuriously exposed to the hazards of [an occupational disease] and suffered a substantial permanent aggravation thereof and the insurance carrier, if an , 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.” (Emphasis added.)
Admittedly, Monfort Inc. v. Rangel, supra, involved multipl employers. However, nothing in that decision suggests that the SB 218 amendments to § 8-41-304(1) are limited to circumstances involving multipl employers. Neither has the Court of Appeals construed Rangel as suggesting such a limitation in the application of the SB 218 amendments to §8-41-304(1). See Russell Stover Candies v. Myers, Colo. App. No. 95CA0640, December 21, 1995 (not selected for publication) (“substantial permanent aggravation” requirement governs liability between successive insurers for single employer).
Here, the ALJ expressly found that the claimant did not suffer a substantial permanent aggravation of her condition after July 1, 1992. Consequently, the ALJ properly concluded that Transamerica is not liable for the claimant’s temporary disability and medical benefits due prior to July 1, 1992.
The respondents nevertheless point out that in Royal Globe Insurance Co. v. Collins, supra, the Supreme Court concluded that in the context of § 8-41-304(1), the term “compensation,” does not include medical benefits. Instead, the Supreme Court concluded that the insurance carrier “on the risk” at the time medical expenses are incurred for an occupational disease is liable for payment of those medical expenses. 723 P.2d at 736. We agree with the respondents’ statement of law. However, in construing Royal Globe in light of the SB218 amendments, we have stated in a series of cases, that the question of whether an insurer was “on the risk” is to be determined under the usual rules governing liability for workers’ compensation benefits. See Rigdon v. Doubletree Hotels, W.C. Nos. 4-175-649, 4-211-377, March 18, 1996; Martinez v. Storage Technology Corp., W.C. No. 4-175-875, August 31, 1995. Accordingly, we have concluded that in order to impose liability for medical benefits on a particular employer or insurer, the claimant must demonstrate a causal connection between the need for medical benefits and the employment. In other words, the claimant must establish that the employment caused, aggravated, or accelerated the occupational disease before that employer may be considered “on the risk” for medical expenses.
Here, the ALJ determined that the claimant’s employment subsequent to July 1, 1992 did not aggravate her CTS. Because the ALJ’s determination is supported by substantial evidence, it is binding on review. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Monfort Inc. v. Rangel, supra. Furthermore, the ALJ’s determination supports a conclusion that Transamerica was not the insurer “on the risk” when the claimant incurred medical expenses for treatment of the occupational disease. Thus, the ALJ did not err in failing to impose liability on Transamerica for the medical expenses incurred by the claimant after July 1, 1992.
IT IS THEREFORE ORDERED that the ALJ’s order dated, July 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed June 6, 1996 to the following parties:
Patricia A. Wallace, 5159 Pony Soldier Dr., Colorado Springs, CO 80917
Homeclub, Inc. a Delaware Corp., 2855 S. Academy Blvd., Colorado Springs, CO 80916-3001
Michelle Burgan, GAB Business Services, 789 Sherman St., #100, Denver, CO 80203
Stacy Strickland, Crawford Co., 4570 Hilton Parkway, Ste. 202, Colorado Springs, CO 80907
Joan A. Goldsmith, Esq., 6665 Delmonico, Ste. D, Colorado Springs, CO 80919 (For CNA Respondents)
William Alexander, Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
BY: _______________________