Opinion
W.C. Nos. 4-412-518, 4-417-006
February 28, 2000
FINAL ORDER
Centura Health/St. Anthony Health Services d/b/a Granby Medical Center (Granby), and its insurer, Preferred Professional Insurance Company c/o Alternative Insurance Management Services (collectively Preferred) seek review of an order of Administrative Law Judge Coughlin (ALJ). The ALJ determined that the claimant suffered a compensable occupational disease and awarded workers' compensation benefits. Preferred contends the ALJ erred in holding them liable for 20 percent of the claimant's temporary disability and medical benefits. We affirm.
In late 1998, the claimant was employed as a full-time housekeeper for Teverbaugh-Heaton Management Company (Teverbaugh) and assigned to clean the Beaver Village Condominiums. The claimant was also employed as a part-time housekeeper for Granby. The ALJ found that both jobs required the claimant to wash, wipe, sweep, mop, vacuum, and change bed linen. In late November or early December 1998, the claimant began experiencing pain and discomfort in her upper extremities. The claimant was subsequently diagnosed and treated for bilateral repetitive motion injuries to her wrists and chronic lateral epicondylitis.
It is undisputed that the claimant sustained a work-related occupational disease affecting her upper extremities. The ALJ was required to determine which employer is liable for the injury. The ALJ determined the occupational disease developed as a result of the claimant's dual employment for Teverbaugh and Granby.
The ALJ also determined that the "last injurious exposure" rule provided by § 8-41-304(1), C.R.S. 1999, (employer in whose employment the claimant was "last injuriously exposed to the hazards of such disease and suffered a substantial, permanent aggravation" is solely liable without the right to contribution from any prior employer), could not be applied to the facts of this claim because there is insufficient evidence in the record concerning the employment where the claimant suffered the last injurious exposure and sustained a substantial permanent aggravation of her injury. However, the ALJ found that 80 percent of the claimant's injury was caused by her work for Teverbaugh and 20 percent was caused by the Granby employment. Therefore, the ALJ ordered Teverbaugh and its insurer, Hartford Fire Insurance Company to pay 80 percent of the temporary disability and medical benefits due on account of the occupational disease and held Preferred liable for the remaining 20 percent.
On review, Preferred does not contest the ALJ's determination that the "last injurious exposure" cannot be applied to the facts of this claim. Therefore, we need not consider whether the ALJ erred in failing to assign liability in accordance with § 8-41-304(1).
Instead, Preferred contends the ALJ erroneously found that the Granby employment was a causative factor in the claimant's injury. Preferred contends that the existence of concurrent employment is insufficient to support the ALJ's finding that the claimant's injury was caused by the dual employment. Preferred also relies on evidence that the claimant originally injured her elbow during her employment for Teverbaugh and the claimant's wrist problems were aggravated by using a spray bottle, which she did not do at Granby. Further, Preferred contends the ALJ's findings of fact are insufficient to permit appellate review because the ALJ failed to discuss the evidence she relied upon and failed to distinguish between the cause of the CTS and the cause of the left elbow epicondylitis. We disagree.
The ALJ is not held to a crystalline standard in articulating her findings of fact and the order is sufficient if the basis of ALJ's determination is apparent from the order. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990) ; George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). We have no difficulty ascertaining the basis for the ALJ's findings concerning the cause of the claimant's injury. The ALJ expressly determined that both employments caused the injury because both required the claimant to repetitively wash, wipe, sweep, mop, vacuum, and change bed linen. (Findings of Fact 2). However, the ALJ found that the Teverbaugh employment caused 80 percent of the injury because the claimant's employment duties at Teverbaugh were five times more physically demanding than her work at Granby, the claimant worked more hours for Teverbaugh, and Teverbaugh required the claimant to exceed the medical restrictions imposed for the injury. ( See Findings of Fact 6, 7, 8; Conclusions of Law 1, 2, 3). Therefore, we need not remand the matter for additional findings.
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is not restricted to medical evidence, and the claimant's testimony, if credited may alone be sufficient to support the ALJ's findings of fact concerning the cause of the injury. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Here, the claimant's testimony supports the ALJ's findings, and that testimony constitutes substantial evidence. (Tr. pp. 17-18, 21, 23-24, 32, 38, 40, 50).
Admittedly, the claimant testified that her she suffered increased pain from using a trigger sprayer and that she only used a trigger sprayer at Teverbaugh. (Tr. p. 11). However, this evidence did not preclude the ALJ from finding that the Granby employment also required repetitive activities which, to a lesser degree contributed to the development of the occupational disease.
Dr. Greenberg opined the claimant's cleaning schedule for Teverbaugh would aggravate the claimant's condition. (April 14, 1999; June 3, 1999). Dr. Greenberg also imposed medical restrictions which required both employments to modify the claimant's job duties. Because the claimant's job duties for Granby were similar, although not identical to her work at Teverbaugh, the ALJ reasonably inferred that at least part of the claimant's upper extremities problems were due to her job duties at Granby. In so doing, the ALJ explicitly recognized the medical evidence which suggested the claimant developed chronic lateral epicondylitis from hitting her elbow on chairs and window sills at work. (Finding of Fact 4). However, the ALJ was not persuaded that the CTS and epicondylitis are distinct occupational diseases from separate causes, and the ALJ is not required to explicitly cite theories he rejected as unpersuasive. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). Moreover, we cannot say the record compels a contrary determination. Accordingly, we conclude that the ALJ's pertinent findings of fact are supported by the record and the findings support the ALJ's determination that the injury was caused by both employments.
IT IS THEREFORE ORDERED that the ALJ's order dated September 20, 1999, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed February 28, 2000 to the following parties:
Loretta P. Raftshol, 388 South County Rd. 620, Granby, CO 80446
Barbie Burkhard, Centura Health/St. Anthony Health Services dba Granby Medical Center, 480 E. Agate, Granby, CO 80446
Teverbaugh-Heaton Management Co., P.O. Box 349, Winter Park, CO 80482-0349
Kathy Lindgren, Preferred Professional Insurance Co. Alternative Insurance Management Services, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
Hartford Fire Insurance Company, 7670 S. Chester St., #300, Englewood, CO 80112
Ronald C. Jaynes, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Claimant)
Anne Smith Myers, Esq. and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents Centura Health/St. Anthony Health Services dba Granby Medical Center and Preferred Professional Insurance Co. Alternative Insurance Management Services)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents Teverbaugh-Heaton Management Co. and Hartford Fire Insurance Company)
BY: A. Pendroy