Opinion
W.C. No. 4-537-010.
August 21, 2003.
ORDER OF REMAND
The claimants seek review of a final order of Administrative Law Judge Gartland (ALJ) which denied workers' compensation death benefits. We reverse and remand for further proceedings.
In 1993, the decedent became permanently and totally disabled as a result of pulmonary fibrosis, which was caused by his industrial exposure to ore dust. The decedent died on March 21, 2002, due to respiratory failure secondary to an acute myocardial infarction.
After reviewing the decedent's medical records, Dr. Kanner rendered the following opinions. The claimant had several risk factors for coronary disease including lesions on his coronary arteries. One of the lesions was "probably the immediate cause of [the decedent's] demise," and the coronary artery disease was the "primary" cause of death. (Depo. p. 37). However, the decedent suffered from a severe lung disease which made him hypoxemic, meaning the amount of oxygen his blood carried was quite low. This condition increases pressures in the pulmonary circulation and strains the heart. (Depo. p. 10). Even though the lung disease did not cause the blockage of a blood vessel which caused the myocardial infarction, the lung disease "aggravated" the heart condition and contributed to the circulatory collapse. (Depo. pp. 15, 16, 32).
Dr. Kanner also opined that the decedent's lung problems "contributed to 15 percent of the low cardiac output and shock that developed after his coronary occlusion." (Depo. p. 35). Dr. Kanner added that "there's a reasonable possibility he could've survived this insult to his heart had he not had the pulmonary problem." (Depo. p. 15).
Section 8-41-301(1)(c), C.R.S. 2002, creates the right to compensation where the worker's death is "proximately caused by an injury or occupational disease." In this regard, the industrial injury need not be the immediate cause of the death, but only a proximate cause to support an award of death benefits. Johnson v. Industrial Commission, 148 Colo. 561, 366 P.2d 864, 865 (Colo. 1961).
Crediting the medical opinions of Dr. Kanner the ALJ found the decedent's severe, and long standing pulmonary disease contributed to the decedent's death by weakening the claimant's heart over time and lessening his chances of surviving the myocardial infarction. (Finding of Fact 8). However, citing our holding in Tibbets v. Union Carbide Corporation, W.C. No. 3-109-015 (December 27, 1995), the ALJ found the claimants were required to prove the lung disease did "more than contribute" to the decedent's death to meet the "proximate cause" criteria. ( See Discussion and Conclusions of Law 3). The ALJ found the decedent's death was caused by an acute myocardial infarction caused by blockage of a blood vessels. Therefore, the ALJ denied the claim for death benefits.
On review the claimants contend the ALJ misapplied the law in denying the claim for death benefits. We agree.
As argued by the claimants, Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986), holds that to support an award of permanent and total disability benefits, the industrial injury must be a "significant" causative factor in the claimant's permanent total disability in that it must bear a direct causal relationship between the precipitating event and the resulting disability. Two years later, in Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751, 753 (Colo.App. 1988) , the court concluded that an occupational disease is the "proximate cause" of a worker's permanent and total disability if the occupational disease is a "necessary pre-condition" or "trigger" to the disability. Ibid at 753.
Expressly relying on Seifried v. Industrial Commission, supra, and Subsequent Injury Fund v. State Compensation Insurance Authority, supra, we concluded in Tibbets v. Union Carbide Corporation, supra, that an occupational disease must be a significant cause of death or a "precondition or trigger" of the worker's death, to support an award of death benefits.
In Tibbets the claimant suffered an admitted occupational lung disease diagnosed as pneumoconiosis. The issue was whether the lung disease was a factor in the decedent's death. The medical evidence in Tibbets was highly conflicting as to whether the pneumoconiosis contributed to the claimant's death. However, because there was substantial evidence to support an ALJ's finding that the occupational disease did not contribute to the decedent's death, but was "solely" caused by as unrelated cardiac condition, we upheld the conclusion that the claimant in Tibbets failed to prove the industrial injury was the proximate cause of the death.
We disagree with the claimants' contention that the Tibbets reference to a "precondition or trigger," created a different standard of proof for proximate causation than is required by Seifried. To the contrary, Tibbets stated that when "put another way," Seifreid held that the industrial injury or disease is a "significant causative factor" if it is a "necessary pre-condition" to the disability. Thus, we perceive Tibbets to be fully consistent with Seifried. However, we do agree with the claimants that an occupational disease may be the proximate cause of a decedent's death if the occupational disease combines or accelerates the effects of a non-occupational condition so as to cause death. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Here, the ALJ concluded the lung disease "contributed" to but was not legally a "proximate cause" of the death because the decedent died of multi-vessel coronary artery disease which led to an acute myocardial infarction. Based upon these findings we conclude the ALJ misapplied the law by requiring the claimants to prove the occupational disease was the immediate, last or primary cause of the decedent's death, when no such proof is required for an industrial injury to be the "proximate cause" of a death.
The ALJ also found the decedent's occupational disease contributed to his death and was "a" cause of the death. In particular, the ALJ found the lung disease, weakened the heart over time and reduced the decedent's chances of surviving the heart attack. (Finding of Fact 8). These findings are supported by substantial evidence, particularly Dr. Kanner's opinions. Therefore, the findings must be upheld on review. Section 8-43-301(8), C.R.S. 2002.
Moreover, the ALJ's findings compel the legal conclusion that the lung disease was a significant causative factor in the decedent's death, i.e. had the decedent not had the lung disease he may have survived the heart attack. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (causation is question of law if reasonable minds can draw only one conclusion from established facts). Under these circumstances, we conclude as a matter of law that the claimants established the lung disease was "a trigger or precondition" of the decedent's death.
In view of our disposition we need not address the claimants' remaining arguments in support of their contention that the ALJ erroneously denied the claim for death benefits.
We also recognize the respondents' contention that the "rule of independence" precludes our consideration of caselaw involving claims for workers' compensation "indemnity" benefits as authority for the legal standard of causation in death benefit claims. However, the respondents misconstrue the rule of independence. The rule provides that disability benefits awarded to a worker and death benefits awarded to the worker's dependents constitute separate and distinct claims involving distinct rights. Metro Glass Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo.App. 1994); State Compensation Insurance Fund v. Industrial Commission, 724 P.2d 679 (Colo.App. 1986). However, the rule of independence does not preclude consideration of cases discussing "proximate cause" in indemnity cases when considering a death case. Indeed, § 8-41-301(1)(c), C.R.S. 2002, uses the term "proximately caused" when referring to "injury or death." In such circumstances, it would be anomalous to suppose the General Assembly intended two meanings for the same phrase. Thus, we reject the respondents' contention that Seifried v. Industrial Commission, supra, and Subsequent Injury Fund v. State Compensation Insurance Authority, supra, are not applicable in determining the proof required to establish that a death proximately resulted from an industrial injury.
IT IS THEREFORE ORDERED that the ALJ's order dated February 12, 2003, is reversed and the matter is remanded to the ALJ for an order concerning the amount of death benefits to be awarded to the eligible dependents.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 21, 2003 to the following parties:
Carole S. Trudeau and Donovan N. Trudeau, P. O. Box 424, Dove Creek, CO 81324
Kathleen A. Pennucci, Subsequent Injury Fund, Tower 2, #630, Division of Workers' Compensation — Interagency Mail
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimants)
Jill M. M. Gallet, Esq., 1525 Sherman St., 5th floor, Denver, CO 80203 (For Respondent Subsequent Injury Fund)
BY: A. Hurtado