Opinion
W.C. Nos. 4-019-431, 4-144-027
January 10, 1996
FINAL ORDER
The respondents separately seek review of an order of Administrative Law Judge Stuber (ALJ) which required Reliance Insurance Company to pay permanent partial disability benefits. We affirm.
The respondents agree that the claimant suffered an injury during the course of her employment at Frito-Lay Incorporated (Frito-Lay), which affected her right upper extremity. Reliance Insurance Company (Reliance) admitted liability for the right extremity injury and provided medical treatment.
Thereafter, claimant remained employed at Frito-Lay, and developed problems in her left upper extremity. Frito-Lay's subsequent insurer, American Manufacturers Mutual Insurance Company (American) admitted liability for a left extremity injury and paid medical impairment benefits.
The ALJ found that the right upper extremity injury was in the nature of an occupational disease with an onset of disability in January 1991. The ALJ also found that treatment of the right extremity resulted in the claimant's overuse of the left extremity, and therefore, the ALJ determined that the left upper extremity problems were the natural and proximate consequence of treatment for the right upper extremity. In so doing, the ALJ credited the claimant's testimony and the opinions of Dr. Primack. Consequently, the ALJ determined that the claimant sustained a single occupational disease which was governed by the law in effect prior to July 1, 1991, the effective date of Senate Bill 91-218 (SB 218).
The ALJ also determined that former § 8-42-110(3), C.R.S. (1990 Cum. Supp.), the reemployment statute, was not applicable. Consequently, the ALJ ordered Reliance to pay permanent partial disability benefits based upon disability as a working unit, with credit for all medical impairment benefits paid by American in connection with the claimant's left upper extremity impairment.
I.
On review, Reliance and American both contend that the ALJ erroneously concluded that the claimant's the left upper extremity problems are not governed by the provisions of SB 218. We perceive no error.
It is well established that the question of whether the claimant's need for medical treatment is causally connected to a particular occupational disease, or a subsequent injury or occupational disease is a factual determination for resolution by the ALJ. Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Consequently, we must uphold the ALJ's finding that the claimant's bilateral problems are the result of a single occupational disease if supported by substantial evidence and plausible inferences the ALJ drew from the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Furthermore, in applying the substantial evidence test, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and his assessment of the weight and sufficiency of the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Notwithstanding the respondents' arguments, the testimony of the claimant and Dr. Primack amply support the ALJ's finding that the claimant's left upper extremity problems were a natural consequence of the claimant's medical treatment for the right upper extremity. (Tr. pp. 19, 20, 32; Primack Depo. pp. 9, 11, 12). Further, the ALJ's finding supports his determination that the claimant's left upper extremity problems are a compensable element of the original claim concerning the right upper extremity. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Vanadium Corporation of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957).
Moreover, the law in effect at the time of the "onset of disability" generally governs an occupational disease claim. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991); Mendisco Urralbura Mining Co. v. Johnson, 687 P.2d 492 (Colo.App. 1984). Because the respondents agree that the claimant's onset of disability from the right upper extremity injury was January 1991, the ALJ properly concluded that the left upper extremity problems are also governed by the law in effect in January 1991. See 1991 Colo. Sess. Laws, ch. 219 at 1291; Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Reliance argues that these facts represent an exception to the "onset of disability" rule. In support, Reliance cites Martinez v. Industrial Commission, 632 P.2d 1044 (Colo.App. 1981). However, this argument is without merit.
Martinez v, Industrial Commission, supra, held that an occupational disease claim is governed by the statute in effect at the time of the injured worker's "last injurious exposure" where the worker advises his employer of a disabling occupational disease, but continues to work in the same employment and incurs additional disability as a result. However, the Court of Appeals has repeatedly held that Martinez represents a narrow exception to the "onset of disability" rule which is not applicable unless, "the claimant's otherwise compensable occupational disease would be rendered non-compensable" under the onset of disability rule. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995) ; SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994).
Unlike the situation in Martinez, there is no assertion that the claimant's otherwise compensable left upper extremity problems would be rendered non-compensable by a mechanistic application of the "onset of disability" rule. To the contrary, American admitted liability for the left upper extremity problems. Therefore, we conclude that Martinez is inapplicable.
II.
Next, Reliance contends that the ALJ erroneously failed to apply the reemployment statute in awarding permanent partial disability benefits. We disagree.
Insofar as pertinent, former § 8-42-110(3) provides:
"In any case where an employer reemploys or continues the disabled employee at work in the employment of the employer at the employee's preinjury rate of pay and extends to the employee the usual wage adjustments, the employee's permanent partial disability award shall be limited to permanent medical impairment or a payment under section 8-42-107, whichever is less."
Reliance concedes that it bore the burden to prove every element of the reemployment statute defense. Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo.App. 1990). Further, the determination of whether Reliance sustained its burden of proof is a factual determination. Cf. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Consequently, our review is subject to the substantial evidence test.
The record contains substantial, albeit conflicting, evidence to support the ALJ's findings that the claimant lost overtime wages, was deprived of promotional opportunities, and experienced a delay in her annual performance review and accompanying wage increase as a result of the occupational disease. (Tr. pp. 21, 23, 43, 48). This finding also supports the ALJ's determination that the respondents failed to establish that the claimant was reemployed at her pre-injury rate of pay and extended "the usual wage adjustments." Fulton v. King Soopers, 823 P.2d 709 (Colo. 1992).
Under these circumstances, the ALJ did not err in concluding that Reliance was not entitled to limit its liability for permanent partial disability benefits to medical impairment. Further, insofar as the ALJ ordered Reliance rather than American to pay permanent partial disability benefits, Reliance does not contest this portion of the ALJ's order. Therefore, we do not consider whether the ALJ properly imposed liability on Reliance. See former § 8-41-304(1), C.R.S. (1990 Cum. Supp.); Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986).
III.
American also contends that the ALJ erred in failing to order the claimant to reimburse it for overpaid temporary disability benefits. We disagree.
The record does not indicate that American requested the ALJ to relieve it from its admission of liability for temporary disability benefits. To the contrary, American repeatedly stated that it was "standing on" its admission. (Tr. pp. 10, 59, 61).
Moreover, even if we assume that American requested relief from its admission of liability for temporary disability benefits, the ALJ had no authority to order the claimant to repay overpaid benefits. See Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995). Rather, in the absence of fraud, American was limited to prospective relief from its admission of liability. See HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990); Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981). Therefore, the ALJ's failure to order the reimbursement was not reversible error.
IV.
Lastly, we deny the claimant's request for attorney fees in connection with Reliance's argument concerning the reemployment statute. Prior to the enactment of § 8-43-301(14), C.R.S. (1995 Cum. Supp.), we had no authority to award attorney fees and costs. Section 8-43-301(14) was enacted as part of SB 218, and thus, only applies to injuries which occurred on or after July 1, 1991. Consequently, § 8-43-301(14) is not applicable to the claimant's January 1991 injury and we lack authority to award attorney fees.
IT IS THEREFORE ORDERED that the ALJ's order dated January 31, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed January 10, 1996 to the following parties:
Marianne Apodaca, 19130 E. 21st Cir., Aurora, CO 80011
Frito-Lay, Inc., 4971 Monaco, Commerce City, CO 80022-4696
American Manufacturers Mutual Ins., P.O. Box 5347, Denver, CO 80217
Reliance Insurance Co., 10375 E. Harvard Ave., #400, One Denver Highland, Denver, CO 80231
David J. Stevens, Esq., 1150 W. Littleton Blvd., Ste. 200, Littleton, CO 80120 (For Claimant)
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For Reliance Respondents))
Karen R. Wells Esq., Ann Smith Myers, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For American Respondents)
BY: _______________________