W.C. No. 4-665-685.Industrial Claim Appeals Office.
November 2, 2006.
FINAL ORDER
The respondents seek review of an order dated May 22, 2006 of Administrative Law Judge Henk (ALJ) that awards the claimant temporary total disability benefits and medical benefits, and denies the respondents’ request for penalties. We affirm.
This matter proceeded to hearing on the issues of compensability, medical benefits, temporary total disability benefits (TTD) and the corresponding issue of responsibility for separation from employment, average weekly wage, and penalties for allegedly failing to timely report an injury.
The ALJ’s pertinent factual findings are summarized as follows. The claimant’s employment started on August 15, 2005. His duties required him to reach, grab, and grip in a repetitive manner, lifting about 50 pieces of meat every hour, each weighing from five to 50 pounds, and in temperatures ranging from 32 to 36 degrees. In September 2005, he began to experience numbness in his upper extremities; however, he did not report his symptoms because he thought his hands and arms were simply “getting used” to his new and demanding job. The symptoms increased and the claimant subsequently reported them to his employer on October 11, 2005.
The employer referred the claimant to Dr. Thiel, who diagnosed carpal tunnel syndrome, but opined that it was not related to his work since it began soon after he started his job. Dr. Thiel referred the claimant to his personal physician and reported that the claimant could return to work once he obtained a release from his physician without restrictions. The claimant saw Dr. Breslow, who diagnosed bilateral carpal tunnel syndrome and recommended physical therapy and medication. She released the claimant to work on October 128, 2005; however, Dr. Thiel indicated the claimant could not return to work until his condition was treated, and reiterated that the claimant had to be released to work without restrictions.
At the time of the hearing the claimant had not worked since October 15, 2005, due to his bilateral upper extremity symptoms. The employer placed him on a medical leave of absence on October 14, 2005. On December 6, 2005, the employer sent him a letter and various forms pertaining to his leave of absence. The letter advised the claimant to contact the human resource clerk with questions and instructed him to complete and return the forms by December 21, 2005. However, the letter did not advise the claimant to provide periodic medical documentation concerning his health status or advise him he would be terminated if he failed to do so.
On December 16, 2005, the claimant sought treatment from Dr. Wunder, the first physician to treat him since Dr. Thiel. On December 20, 2005, the claimant advised his employer that he had seen a physician and was awaiting a medical report. The employer sent the claimant a letter dated December 21, 2005, that advised him of his failure to provide an update on his current medical condition as the previous letter dated December 6, 2005 had instructed him to do. The December 21st letter also advised the claimant that he had not contacted the employer as requested. The letter further advised the claimant that his “silence has been perceived as your voluntary termination of employment.” Findings of Fact, Conclusions of Law, and Order (Order) at 5, ¶ 8.
The ALJ reviewed the reports of various physicians and found that the claimant developed bilateral tendonitis and de Quervain tenosynovitis as a result of his job duties, which she characterized as an occupational disease. She also determined that Dr. Wunder and Dr. Breslow are authorized treating physicians and she awarded medical benefits to treat the compensable condition. The ALJ also awarded TTD beginning on October 15, 2005 and continuing until terminated pursuant to applicable law. Because the claimant had contacted the employer twice by December 20, 2005 and had not been advised of the need to provide updated medical documentation, the ALJ concluded that he was not responsible for the job separation. The ALJ also rejected the respondents’ claim for penalties, finding that the claimant had reported his condition to the employer when he “first realized the seriousness of his condition and its relatedness to his job on October 11, 2005.” Order at 10-11, ¶ 18.
I.
The respondents appealed and challenge the ALJ’s finding that the claimant’s bilateral upper extremity condition is work-related. They also assert that the claimant was responsible for his separation from his employment and further argue that they are entitled to penalties against the claimant. However, we are not persuaded that the ALJ erred and, therefore, we affirm her order.
The respondents first argue that the claimant failed to sustain his burden of proof to establish a compensable occupational disease and cite to evidence supporting their position. However, we may not reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Furthermore, the record supports the ALJ’s determination that the claimant sustained a compensable occupational disease.
Section 8-40-201(14), C.R.S. 2006, defines an occupational disease as one which results directly from the conditions under which work was performed, is a natural incident of the work, can fairly be traced to the employment as a proximate cause, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.”
The question of whether a claimant has proven that a particular disease, or aggravation of a disease, was caused by a work-related hazard is one of fact for determination by the ALJ Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). Consequently, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Thus, it is for the ALJ to resolve conflicts between medical experts, and to resolve any internal inconsistency which exists in the opinions of an individual physician. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The ALJ expressly credited the claimant’s testimony and the opinion of Dr. Wunder in finding that the claimant developed bilateral tendonitis and de Quervain tenosynovitis because of his job duties. Order at 6, ¶ 14. Evidence in the record supports this finding. The claimant testified to the repetitive nature of his work and the resulting numbness and pain he experienced in his upper extremities soon after he started his new job. Tr. at 9, 12. Dr. Wunder issued a report in which he cites his experience in the employer’s industry and notes that he “saw many patients who developed tendonitis and carpal tunnel syndrome within two weeks of starting the job.” Exhibit 1 at 2. Dr. Wunder’s impression is that the claimant’s condition includes right de Quervain’s tenosynovitis and bilateral flexor tendonitis at the wrist. He opined within a reasonable degree of medical probability that the claimant’s condition is work-related. Exhibit 1 at 2. The ALJ’s finding that the claimant sustained an occupational disease related to his work for the employer is supported by the evidence and is, therefore, binding on review Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
II.
For similar reasons, we uphold the ALJ’s finding that the respondents failed to prove they are entitled to relief under the termination statutes, §§ 8-42-103(1)(g) and 8-42-105(4), C.R.S. 2006. These statutes provide that in cases where “a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” The termination statutes require the respondents to prove the claimant was “responsible for termination of employment.” A claimant is “responsible” for a termination from employment if the claimant engaged in “volitional conduct” or “exercised some degree of control over the circumstances leading to the termination.” See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002) (term “responsible” introduces concept of “fault” as it was used prior to decision in PDM decision) Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995).
The termination statutes provide an affirmative defense to a claim for TTD and the respondents bore the burden of proof to establish their applicability. Witherspoon v. Metropolitan Club
W.C. No. 4-509-612 (December 16, 2004). Generally, the question of whether the claimant acted volitionally, and therefore is “responsible” for a termination from employment, is a question of fact to be decided by the ALJ, based on consideration of the totality of the circumstances. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987). Thus, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ is not required to credit the testimony of a witness, even if it is uncontradicted and unrebutted. Levy v. Everson Plumbing, Co., Inc., 171 Colo. 468, 468 P.2d 24 (1970) Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Further, evidence not specifically credited by the ALJ is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The respondents argue that the claimant knew he was required to keep the employer apprised of his ongoing medical status while off work, but failed to do so, which resulted in his discharge for abandoning his position. However, the ALJ found that the respondents failed to prove the claimant was responsible for his termination. In support of this finding, the ALJ found that, although the claimant knew he was to provide his employer with updated medical documentation, the employer did not inform him he would be terminated for failing to provide the documentation. She also found that the claimant advised the employer about having seen a physician, but was terminated the next day. Order at 5, ¶ 9.
The ALJ’s findings are supported by evidence in the record. The employer wrote to the claimant on December 6, 2005, requesting medical documentation of his health condition. Exhibit C. The letter does not indicate any consequences concerning the claimant’s employment if he failed to provide the requested documentation. Instead, the letter merely implies that the information is needed because of guidelines imposed by the Family and Medical Leave Act (FMLA). The employer subsequently issued a letter on December 21, 2005, advising the claimant that his “silence” in providing an update on his medical condition was deemed to be a “voluntary termination.” Exhibit C. In addition, the claimant testified that he understood he was placed on leave and was not to return to work until he “had 100 percent recovery.” Tr. at 16. He further testified that he did not provide the employer with medical information because, at the time, he had no such reports and told his employer as much prior to the termination letter. Tr. at 16-17. The record therefore provides evidentiary support for the ALJ’s corresponding conclusion that the claimant was not responsible for his separation from this employment.
III.
Finally, the respondents argue that they are entitled to penalties because the claimant’s testimony supports a determination that he did not timely report his injury. The ALJ 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. 2006.
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. Cf. City of Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo.App. 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 to give timely 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.
The ALJ found that, although the claimant began to experience numbness in his upper extremities, he did not report the symptoms because he thought his hands and arms were simply “getting used” to his new job. Order at 3, ¶ 2. The claimant testified to that effect. Tr. at 12-13. The ALJ further found that the claimant’s symptoms increased and he reported the condition to his employer on October 11, 2005. Order at 3, ¶ 2. The claimant’s testimony also supports this finding. Tr. at 13-14.
The ALJ therefore determined the claimant reported the condition when he first realized that it was serious and related to his work. Order at 10, ¶ 18. As we read the ALJ’s order, she determined that the respondents failed to sustain their burden to prove the claimant recognized the probable compensable nature of his upper extremity condition more than 30 days prior to the date the claimant finally reported the injury or the employer had actual notice of the injury. The ALJ’s determination is supported by the record and, therefore, must be upheld on review.
IT IS THEREFORE ORDERED that the ALJs order dated May 22, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Dannie Wilhite, Brush, CO, Cargill Meat Solutions, Patty Malavasic, Fort Morgan, CO, AIG Claims Services, Phoenix, AZ, Crawford Company, Stacy Hoover, Englewood, CO, Overturf, McGath, Hull Doherty, P.C., Christopher Condit, Esq., Denver, CO, (For Respondents).
Law Offices of Regina M. Walsh Adams, Michael D. Mullison, Esq., Greeley, CO, (For Claimant).