Opinion
W.C. No. 4-266-253
July 23, 1999.
FINAL ORDER
The Liberty Mutual Insurance Company, (Liberty) and its insured, Staff Administrators (collectively the Liberty Mutual respondents) seek review of an order of Administrative Law Judge Stuber (ALJ) dated October 22, 1998. We affirm.
In January 1995, the claimant became an employee of Virtual Industries, Inc, (Virtual), which was insured for workers' compensation by the Union Insurance Company (Union). The claimant's job required a variety of activities including sand blasting, tube crimping, and operating a punch press. The claimant testified that her right wrist began hurting in February 1995 from using a hand crimper. On May 20, 1995, the claimant became an employee of Staff Administrators, but continued to perform the same duties at Virtual.
On July 19, 1995, the claimant sought medical treatment from Dr. Ravin for complaints of right wrist pain. Dr. Ravin released the claimant from work. The claimant subsequently began treating with Dr. Labosky, who diagnosed right thumb carpal and metacarpal instability, right lateral epicondylitis, and possible triquestral lunate instability of the right hand. Dr. Labosky opined that the claimant's job duties between May and July 1995 substantially and permanently aggravated her condition.
On January 19, 1996, Union filed a general admission of liability for medical and temporary disability benefits. In 1998, Union requested an order requiring the Liberty Mutual respondents to pay the claimant's workers' compensation benefits.
The ALJ determined the claimant suffered an occupational disease from repetitive activities required of her job at Virtual. Crediting the testimony of the claimant and Dr. Labosky, the ALJ further determined that the claimant was last injuriously exposed and suffered a substantial, permanent aggravation of the disease while employed by Staff Administrators. Therefore, the ALJ ordered the Liberty Mutual respondents to reimburse Union for all temporary disability benefits paid to the claimant, and to provide ongoing temporary disability benefits. The ALJ also determined that Liberty was the insurer on the risk for the claimant's medical treatment. Consequently, the ALJ held the Liberty Mutual respondents solely responsible for all medical benefits.
On review, the Liberty Mutual respondents first contend the ALJ erred in finding the claimant suffered an occupational disease. They contend the evidence compels a finding the claimant suffered an "accidental injury." We disagree.
The determination of whether the claimant sustained an occupational disease or an accidental injury is factual in nature, and therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998); Campbell v. IBM Corporation, supra. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Where the evidence is susceptible of conflicting inferences, the ALJ shall determine the inference to be drawn. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The distinction between an "occupational disease" and an "accidental injury" is that an "accidental injury" is the result of an event which is traceable to a particular time, place and cause. Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964). In contrast, an "occupational disease" is acquired in the ordinary course of employment and is a natural incident of the employment. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). The fact that a condition becomes acutely symptomatic at a particular moment does not transform it from an occupational disease into an accidental injury. Campbell v. IBM Corporation, supra; Masdin-Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984). To the contrary, some conditions can be traced to a particular place and time, but analyzed as either an accident, or an occupational disease, depending on the cause. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Campbell v. IBM Corporation, supra.
Here, the record is subject to conflicting inferences. However, there is substantial evidence in the claimant's testimony to support the ALJ's finding that the claimant's injury was caused by repetitive hand activities. The claimant testified that she was required to crimp tubing throughout her employment at Virtual, and that she began experiencing right wrist pain in February 1995, after one and one-half days of tube crimping on a large shipment. (Tr. pp. 23, 39).
Admittedly, the claimant stated that she believed she "tore ligaments" in her wrist while working on the February shipment. (Tr. p. 23). However, she stated that she continued to work, did not fill out an accident report, and did not immediately lose time from work. (Tr. p. 25). Instead, the claimant told the employer that she was "uncomfortable" using the crimping tool and for a while switched to an air crimper. (Tr. pp. 26, 27, 57,58). Based upon this testimony and evidence the claimant did not seek medical treatment until July 1995, the ALJ reasonably inferred that the claimant's injury was the cumulative effect of her repetitive work activities and not a traumatic accident while processing the large shipment in February 1995.
Next, the Liberty Mutual respondents contend that the ALJ erroneously failed to determine whether the claimant suffered an occupational disease prior to May 20, 1995. Therefore, they contend that the ALJ's finding of a subsequent substantial, permanent aggravation does not support the order. Again, we disagree.
Section 8-41-304(1), C.R.S. 1998, provides in pertinent part that:
"Where compensation is payable for an occupational disease, the employer in whose employment the employer 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 therefore, without right of contribution from any prior employer or insurance carrier."
As argued by the Liberty Mutual respondents, § 8-41-304(1) presumes the existence of an occupational disease before the last injurious exposure rule is applicable. This is illustrated by the fact that the statute begins with the statement, "Where compensation is payable for an occupational disease."
Contrary to the argument of the Liberty Mutual respondents, the ALJ explicitly determined that the claimant developed an occupational disease in February 1995, from the repetitive activities required of her employment for Virtual. (Conclusions of Law 1; Summary Order September 22, 1998, Finding of Fact #1). Accordingly, the issue became whether the claimant's condition was substantially and permanently aggravated during her employment for Staff Administrators.
The ALJ's finding that the claimant's condition was substantially and permanently aggravated after May 20, 1995, is supported by Dr. Labosky's testimony. Therefore, the ALJ did not err in determining that the Liberty Mutual respondents are liable for the claimant's injury.
However, the Liberty Mutual respondents argue that Dr. Labosky's deposition testimony is not substantial evidence to support the ALJ's findings because Dr. Labosky's testimony was taken during a "discovery" deposition and there is no statute or rule for the admission of "discovery" depositions. We reject this argument.
"Depositions" are a form of "discovery" permitted by Rule VIII(E), 7 Code Colo. Reg. 1101-3 at 23. Rule VIII(E)(4) states that "Discovery, other than evidentiary depositions" shall be completed at least 20 days before the hearing. Because Rule VIII(E)(4) classifies "evidentiary" depositions as a form of discovery, a deposition may be both a "discovery deposition" and an "evidentiary deposition."
Section 8-43-210, C.R.S. 1998, provides that "depositions may be substituted for testimony upon good cause shown." The statute does not differentiate between "discovery" depositions and "evidentiary"depositions. It follows that under § 8-43-210, discovery and evidentiary depositions may be admitted upon a showing of good cause. Similarly, the Rules of Procedure, Part VIII(I)(2), 7 Code Colo. Reg. 1101-7, provide that "for good cause shown," an "evidentiary deposition" may be filed at anytime prior to the close of the formal hearing. Therefore, we conclude that even if a deposition is initially taken for "discovery" it may be properly admitted as an "evidentiary deposition."
The ALJ has wide discretion in determining whether good cause has been shown for admitting a deposition. Consequently, not interfere with the ALJ's determination in the absence of a clear abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ's determination "exceeds the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The Liberty Mutual respondents' arguments notwithstanding, the record is devoid of evidence indicating whether Dr. Labosky's deposition was taken for the sole purpose of "discovery" or to preserve Dr. Labosky's testimony in lieu of live testimony. Furthermore, they conceded that it is customary in workers' compensation cases to depose doctors in lieu of live testimony. (Tr. p. 16). The respondents also admitted that they attended the deposition and were given an opportunity to conduct cross examination on the issues in dispute. (Tr. p. 18). Under the particular facts presented here, we conclude that the ALJ's finding of good cause to admit Dr. Labosky's deposition does not exceed the bounds of reason.
Moreover, the claimant listed Dr. Labosky as a potential witness for the hearing, and the Liberty Mutual respondents do not indicate any specific tactical changes they would have made had they known that the claimant intended to offer Dr. Labosky's deposition as evidence at the hearing. Further, the Liberty Mutual respondents did not request a continuance after the ALJ admitted Dr. Labosky's deposition. Consequently, we are not persuaded that the Liberty Mutual respondents due process rights were compromised. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (procedural due process entitles the claimant to notice of the issues to be adjudicated and the evidence to be considered, as well as an opportunity to confront adverse witnesses and rebut evidence).
Finally, the Liberty Mutual respondents contend that the ALJ erroneously allowed Union to retroactively withdraw its admission of liability. They argue that Union's request for retroactive reimbursement is barred by the equitable doctrine of laches and the principles announced in HLJ Management Group Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990). We disagree.
Admittedly, there is no statutory authority for an insurer to retroactively withdraw an admission of liability. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985); Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); HLJ Management Group, Inc. v. Kim, supra. Rather, in HLJ, the court held that in the absence of fraud or material misrepresentation, an insurer is limited to prospective relief from an improvidently filed admission.
However, we have previously held that the principles established in HLJ concerning the retroactive withdrawal of admissions, do not apply to reimbursement between insurers. See Higgins v. Economy Lumber Hardware Company, W.C. Nos. 4-180-367 et. al., (February 23, 1995) ;Watts v. Eben Ezer Lutheran Care Center, W.C. No. 3-105-560 et. al.. (February 24, 1994) ; Alexander v. La Plata Electric Association, Inc., W.C. No. 3-034-667, (July 17, 1991). We concluded that where there are multiple insurers and the ALJ determines that the claimant suffered a compensable occupational disease, the question is not whether the claimant is entitled to receive compensation, but which of two insurers is liable for the compensation. Under these circumstances, the insurer determined to be liable for the compensation may be ordered to reimburse the other insurer for benefits previously paid pursuant to an admission of liability. See Sanchez v. Central Bank of Denver, W.C. Nos. 3-912-325; 3-973-440, 4-102-477 (January 9, 1995). We adhere to our previous conclusions.
Here, the ALJ determined as a matter of fact that the claimant's entitlement to disability and medical treatment is due to a substantial and permanent aggravation of her occupational disease while employed by Staff Administrators. Consequently, it was proper for the ALJ to order the Liberty Mutual respondents to reimburse Union for all workers' compensation benefits which were paid by Union but attributable the claimant's employment at Staff Administrators.
We also conclude that the "laches" argument was not preserved for appellate review. The equitable doctrine of laches may be used to deny relief to a party whose unconscionable delay in enforcing her rights has prejudiced the party against whom enforcement is sought. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994); Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987). Thus, application of the doctrine of laches require both proof of a delay and prejudice. Further, laches is an affirmative defense, and therefore, it is deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. See C.R.C.P. 8(c); Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); McPherson v. McPherson, 145 Colo. 170, 358 P.2d 478 (1960); Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
At the commencement of the hearing, the Liberty Mutual respondents alleged that Union's two-year delay in requesting reimbursement was "incorrect" and contrary to the court's prohibition against retroactive relief. (Tr. p. 5). However, the Liberty Mutual respondents did not allege any particular prejudice from the delay. Similarly, the Liberty Mutual's respondents' post-hearing position statement alleged that the delay was "unbelievable," but did not allege any specific prejudice. (Position Statement September 21, 1998). Under these circumstances, we do not construe the simple assertion of a delay as alleging a laches defense. Compare Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (where substance of argument is raised before ALJ, the argument is preserved for review even if the label used to describe argument is not the same). Consequently, we shall not consider the argument for the first time on review. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ's order dated October 22, 1998, 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. 1998.
Copies of this decision were mailed July 23, 1999 the following parties:
Kimberly Johnson-Reynolds, 1317 N. Franklin, Colorado Springs, CO 80903
Elena Gonzales, Staff Administrators, c/o The Connell Law Firm, 1675 Larimer St., Ste. 710, Denver, CO 80203
Hal Palmer, Virtual Industries, Inc., c/o. Susan Kurachi Reeves, Esq., 111 S. Tejon Ste. 700, Colorado Springs, CO 80903
Cindy Deist and Cassandra Brooks, Union Insurance Company, 3641 Village Dr., Lincoln, NE 68516-4721
Shannon Wrage, Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Stephanie J. Stevenson, Esq., Norton Frickey Assoc., 2301 E. Pikes Peak Ave., Colorado Springs, CO 80903 (For Claimant)
John Connell, Esq., The Connell Law Firm, 1675 Larimer St., Ste. 710, Denver, CO 80203 (For Respondent — Liberty Mutual)
Susan Kurachi Reeves, Esq., 111 S. Tejon Ste. 700, Colorado Springs, CO 80903 (For Respondent — Union Ins. Co.)
BY: A. Pendroy