Opinion
W.C. No. 4-419-565.
May 23, 2006.
FINAL ORDER
The claimant seeks review of an order dated October 16, 2002 of Administrative Law Judge Harr (ALJ) that determined Kodak was liable for five percent of the claimant's compensation and five percent of medical benefits and denied certain temporary total disability benefits. We affirm.
We first note that we have twice previously remanded this matter for completion of the record, because it appeared to us to lack certain medical records that were cited by the respondents and that may have been considered below. Because the respondents continue to refer to medical reports that are not contained in the record, it is not clear that the complete record has even now been transmitted to this office. However, the record is sufficient to permit our review. Moreover, the appealing party bears the responsibility to produce a record sufficient to demonstrate error, and the parties have now had two opportunities to insure that the record transmitted to us is complete. Fleet v. Zwick, 944 P.2d 480 (Colo.App. 1999).
The ALJ's pertinent findings of fact are as follows. The claimant worked for Kodak from August 1975 to September 1999. Prior to March 1999 the claimant's work at Kodak involved standing and walking for 50 percent to 75 percent of her twelve-hour shift while wearing heavy safety shoes. On March 29,1999, the claimant reported bilateral knee pain to Dr. Volk, her personal physician. The ALJ found that the claimant's onset of disability was June 3, 1999 when her physician released her to modified work. Kodak accommodated the claimant's work restrictions.
Dr. Hughes performed an independent medical examination (IME) of the claimant at her request. Dr. Hughes described the claimant as 5 feet, 2 inches tall and obese at 214 pounds. Dr. Hughes believed the claimant's work at Kodak accelerated her underlying knee condition. Dr. Hughes did not believe it medically probable that the claimant's lumbar spine condition was either caused or aggravated by her work at Kodak.
Dr. Greenberg performed an IME of the claimant at Kodak's request. Dr. Greenberg attributed the claimant's bilateral knee condition to her morbid obesity and to a genetic predisposition to developing degenerative arthritis. In Dr. Greenberg's opinion, the claimant's obesity and underlying degenerative arthritis are responsible for 95 percent of the claimant's bilateral knee condition. Dr. Greenberg attributed five percent of the claimant's knee condition to work-related aggravation of her underlying arthritic condition while working at Kodak.
Dr. Bernton agreed with Dr. Greenberg's opinion that the cause of the claimant's bilateral knee problem is degenerative arthritis. Dr. Bernton went on to state that the long hours of standing and walking at Kodak could certainly substantially and permanently aggravate that condition. Dr. Beatty attributed the claimant's degenerative arthritis to the claimant's body habitus, including her weight, and to her work at Kodak.
The ALJ found there was no persuasive evidence showing that the claimant's occupational exposure to walking on concrete floors during her work at Kodak, was a necessary precondition to developing bilateral degenerative arthritis in her knees. However, the ALJ found that the claimant's occupational exposure at Kodak aggravated her degenerative arthritis in her knees and caused a substantial permanent aggravation of the underlying degenerative arthritis of her knees. The ALJ found that Kodak had shown that the claimant's work at Kodak contributed five percent to the claimant's development of her underlying degenerative arthritis in her knees. The ALJ found Dr. Greenberg's opinion persuasive.
Based on these findings the ALJ found that the claimant's work at Kodak contributed five percent to the claimant's development of her underlying degenerative arthritis in her knees. The ALJ determined that Kodak should be liable for paying five percent of the claimant's compensation and five percent of the medical benefits.
The ALJ found that the claimant quit Kodak for personal reasons and that she left for reasons unrelated to her bilateral knee condition. The ALJ found that the claimant failed to prove by a preponderance of the evidence that there was a causal connection between her wage loss after quitting Kodak and her industrial injury.
On review the claimant first argues that the ALJ erred in denying temporary total disability (TTD) from March 30, 1999 to June 2, 1999 because the leave was not "solely" due to the bilateral knee pain. The claimant argues, citing Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996), that she was not required to show that the industrial injury was the sole cause of the medical leave of absence, rather benefits are only precluded when the industrial disability play "no part" in the wage loss.
The ALJ found that the claimant's onset of disability was June 3, 1999. Findings of Fact, Conclusions of Law and Order (Order) at 3, 8. The ALJ noted that the claimant's physician had released her earlier on March 29, 1999 but this was based largely upon her depression, which was not work-related. Dr. Hajek first evaluated the claimant while she was released from work for her depression and gallbladder symptoms. However, Dr. Volk released the claimant to return to modified work as of June 3, 1999 upon Dr. Hajek's recommendation, based upon her bilateral knee condition. The ALJ found that these were the first work restrictions based solely upon the claimant's bilateral knee condition.
The claimant argues that the ALJ erred because there is no evidence that Dr. Volk released the claimant from work largely based upon depression. Dr. Volk appears to have produced two documents dated March 29, 1999. There is the one described by the claimant in her brief which is a hand-written letter dated March 29, 1999, listing knee and back pain which may be work related and asking the employer to consider a period of medical leave. However, there is also a medical record dated "29/99" which could have been reasonably taken by the ALJ as meaning 3/29/99. This report discusses her knees hurting, but no back problem is mentioned. The report also discusses the problems the claimant is having struggling with grief reaction and "dealing with the loneliness stress that comes with that as well. Feels she is having a very difficulty time coping currently. Feels she is having a very difficult time coping currently. She is wondering about a possible medical leave. No suicidal thought or ideation."
We must uphold the ALJ's determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2005. Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Further, the ALJ findings may be based on reasonable inferences from the evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). In our opinion the ALJ's finding that Dr. Volk released the claimant from work largely based upon depression is a plausible interpretation from Dr. Volk's medical records and thus, must be upheld.
For purposes of awarding indemnity benefits, the claimant does not suffer a compensable occupational disease until the claimant experiences the "onset of disability." See Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). Accordingly, where the issue is temporary disability benefits, the date the claimant suffers the onset of disability is critical to whether § 8-41-304(1) is applicable. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. Seyhouwer v. Robbins W.C. 4-462-729 (May 20, 2003). Here, the report of Dr. Hajek is a sufficient basis for the ALJ's determination of the onset of disability.
The burden is upon the claimant to prove a direct causal relationship between the industrial disability and her inability to perform her regular employment. Monaco v. Hewlitt Packard, W.C. No. 4-120-069 (November 10, 1993); Cook v. University of Colorado, W.C. No. 30723-139 (December 24, 1987); cf. Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo.App. 1986). The ALJ determined from the medical evidence and testimony that the claimant had established the onset of disability as of June 3, 1999. Based upon this evidence the ALJ reasonably inferred the claimant failed to prove she suffered the onset of disability before that date. The record supports the ALJ's determination that the claimant was not restricted, because of her knees, from performing her pre-injury employment until after June 3, 1999. Thus, the ALJ did not err in denying the claim for TTD prior to June 3, 1999.
The claimant next argues that since the ALJ found the claimant had work restrictions on June 3, 1999 and did not returned to work until after June 14, 1999 the ALJ should have been granted TTD for that period. The ALJ did find that the onset of disability occurred on June 3, 1999 and that the claimant was released to return to modified work as of that date. Order at 3, 8. However, the reasons for the short delay in returning to work after being released to return to modified work are not apparent from the record. The claimant testified that she was put on restricted duty and then Kodak moved her into a position that was within those restrictions. Tr. (7/23/02)at 85. The claimant testified that she worked up until her last day at Kodak on September 3, 1999 with restrictions. Tr. (7/23/02) at 107. The claimant bears the burden of proof on this issue and based upon the argument made and the record we are not convinced that the ALJ erred in not awarding TTD for this period of time.
The claimant also argues that the ALJ's apportionment out of 95 percent of the claimant's compensation and medical benefits because of the claimant's genetic predisposition and obesity is in error. The claimant contends that the ALJ's apportionment is inconsistent with Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
In Anderson v. Brinkhoff, supra the Supreme Court held that where "there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." 859 P.2d at 825. In so doing, the court interpreted the statute currently codified at § 8-40-201(14), C.R.S. 2005, which provides that an occupational disease may not "come from a hazard to which the workers would have been equally exposed outside of the employment." Based on its interpretation of the statute, the Anderson court expressly ordered reinstatement of an ALJ's order which ruled the claimant "was entitled to 50% of the medical and disability benefits to which [the claimant] otherwise would be entitled." 859P.2d at 821, 825. See Roberts v. Starpak, Inc., W.C. No. 4-188-242(April 9, 1997) (holding that respondents may be entitled to apportionment of medical benefits under Anderson v. Brinkhoff); Malloy v. Lincoln Community Hospital, W.C. No. 4-148-045 (March 2, 2005); Gale v. United Parcel Service, W.C. No. 4-606-010 (June 16, 2005); Gabaldon v. Public Service, W.C. No. 4-431-024(June 14, 2004).
The conditions of employment need not be the only cause of the disease, and a claimant is entitled to compensation if the hazards of employment cause, intensify, or aggravate to some reasonable degree the disability for which compensation is sought. See Anderson v. Brinkhoff, supra. If an industrial exposure is not a necessary precondition to the development of a disease then "the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." Id. at 825.
The claimant cites Stewart v. Dillon companies, W.C. No. 4-257-450, (November 20, 1996), and Rodriquez v. Monfort, W.C. No. 4-299-732 (May 4, 1998) for the proposition that a claimant's body habitus and genetic composition are not considered apportionable hazards. In Stewart, supra the ALJ determined that the "sole cause" of the claimant's disability was the claimant's employment, and specifically that all the claimant's symptoms, disability, impairment and need for treatment were caused by the claimant's occupational disease. We affirmed the ALJ's refusal to apportion liability. In contrast to Stewart, in the present case the ALJ found that the claimant's occupational exposure was not a necessary precondition to developing the bilateral degenerative arthritis in the claimant's knees. Instead the ALJ credited the medical opinions of Dr. Hughes, Dr. Greenberg, Dr. Bernton, and Dr. Beatty in finding the claimant developed the underlying degenerative arthritis in her knees as a result of her genetic predisposition combined with obesity. The ALJ found that the claimant's work at Kodak caused a permanent aggravation of the degenerative arthritis of her knees. Order at 10.
In our view the claimant's reliance on Stewart, supra is misplaced, as is the claimant's reliance on Rodriquez, supra. In Rodriquez the ALJ determined that the respondent had failed to sustain its burden of proving that the claimant's condition was caused, aggravated, or intensified by non-occupational hazards and consequently denied the claim for apportionment. We affirmed the ALJ's determination and noted that we have no basis for disturbing the ALJ's resolution of conflicts in the evidence. In the present case the ALJ determined that Kodak had sustained its burden and so was entitled to an order of apportionment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Consequently, as noted, we must uphold the ALJ's determination if supported by substantial evidence in the record. § 8-43-301(8). This standard of review requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, the ALJ found the evidence did not show that the claimant's occupational exposure to walking on concrete floors during her twelve-hour shifts at Kodak was a necessary precondition to developing a bilateral degenerative arthritis in her knees. The claimant however showed it more probably true than not that her occupational exposure to walking, standing, stooping, bending, and kneeling while working at Kodak on concrete floors during her twelve-hour shifts intensified, accelerated or aggravated her degenerative arthritis in her knees. The ALJ credited the medical opinions of Dr. Hughes, Dr. Greenberg, Dr. Bernton and Dr. Beatty in finding that the claimant developed underlying degenerative arthritis in her knees a result of her genetic predisposition combined with obesity. The ALJ found that claimant's work at Kodak for more than 24 years caused a substantial permanent aggravation of the underlying degenerative arthritis of her knees based upon the medical opinions of Dr. Hughes, Dr. Bernton and Dr. Beatty. These findings represent a plausible interpretation of the evidence and we perceive no basis on which to interfere with the ALJ's determination.
In Corwin Co. V. Medina, 860 P.2d 535 (Colo.App. 1992), the court held that if the claimant proves the conditions of employment have proximately caused or aggravated a disease, the burden of showing the existence and extent of other causes for purposes of apportionment falls on the respondent. Further, the court held that the question of whether the employer has met its burden is a question of fact for the ALJ. Here, the ALJ cited Corwin and explicitly recognized that the respondent carried the burden of proof on apportionment. The ALJ found, that Kodak had shown it more probably true than not that the claimant's work at Kodak contributed five percent to the claimant's development of her underlying degenerative arthritis in her knees. The ALJ found persuasive the opinion of Dr. Greenberg that the claimant's work at Kodak accelerated the development of her degenerative arthritis to the extent of five percent. The record, in fact the great weight of the medical opinion, supports the ALJ's finding.
The cases of Horton v. Industrial Claim Appeals Office, supra and Nicholl v. Canino Sausage Co. Inc. the Hartford Casualty Company, W.C. No. 4-473-725 (March 10, 2003) cited by the claimant involved accidental injuries, not occupational disease. Anderson v. Brinkhoff, supra does not apply in cases of accidental injuries and is dependent on the statute defining occupational diseases. Therefore, we are bound by Anderson in apportioning the temporary disability and medical benefits. Further we agree with the ALJ's conclusion that Anderson is applicable to the facts as he found them.
The claimant next argues that the ALJ erred in denying TTD on the ground that the claimant was at fault for her termination. The claimant asserts that Kodak's response to the application for hearing did not list "responsibility for termination" as a defense to the claim for TTD. Therefore, the claimant argues that the fact that she left Kodak to move to Grand Junction in order to more appropriately raise her teenage daughter is irrelevant. The claimant argues that under PDM Molding, Inc. v. Stanberg, 898 P.2d 543 (Colo. 1995) if the claimant's industrial injury, to some degree, played a part in the wage loss the claimant is entitled to TTD.
We agree with the claimant that § 8-42-103(1)(g), C.R.S. 2005, and § 8-42-105(4), C.R.S. 2005 (the termination statutes) do not apply to this claim. Those statutes provide in identical language that where a temporarily disabled employee is responsible for a termination from employment the wage loss is not attributable to the injury. However, in enacting those statutes, the General Assembly expressly limited their application to injuries occurring on or after July 1, 1999. See 1999 Colo. Sess Laws, ch. 90, at 266. As noted, an occupational disease "occurs" on the date of onset of the disability. Union Carbide Corp. v. Industrial Claim Appeals Office of State of Colorado, 128 P.3d 319, (Colo.App. Dec 01, 2005). In the present case the ALJ found that the onset of the claimant's disability was June 3, 1999. As we read his order, the ALJ correctly recognized that the termination statutes were not applicable, and that PDM Molding, Inc. v. Stanberg, supra, governs the determination of whether the claimant is entitled to temporary disability benefits. Trang Nguyen v. Intertech Plastics W.C. Nos. 4-585-059, 4-585-060, 4-585-061, 4-590-372 December 17, 2004
Under PDM Molding, the ALJ must make a threshold determination concerning whether the claimant was at fault for the loss of the employment or the reduction in pay. If the claimant was at fault, the claimant is disqualified from the receipt of temporary benefits unless she establishes that to "some degree" the wage loss remains attributable to the effects of the industrial injury. PDM Molding, Inc., 898 P.2d at 548-549; Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Determination of these issues involves questions of fact for resolution by the ALJ. See Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997).
Because these issues are factual, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, supra. Moreover, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law, and we may consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ found the claimant was "at fault" for her termination. The ALJ found that when the claimant returned to work after June 14, 1999, Kodak accommodated the claimant's work restrictions with a job allowing her to work while sitting. The ALJ credited the testimony of the claimant's supervisor in finding that the claimant quit for personal reasons. The ALJ found that the claimant left Kodak for reasons unrelated to her bilateral knee condition. The ALJ found that the claimant thus failed to prove by a preponderance of the evidence that there was a casual connection between her wage loss after quitting Kodak and her industrial injury, and we must uphold the ALJ's determination if supported by substantial evidence in the record. § 8-43-301(8). There is support in the record for this determination particularly the supervisor's testimony. Tr. (7/24/2002) at 55. It is apparent from the ALJ's findings that he was not persuaded that the claimant's wage loss was "to some degree" attributable to the effects of the industrial injury. Hence, the ALJ cited in his order the repeated representations made by the claimant in job applications that her reason for leaving her previous employment was other than her medical condition. It was a plausible inference from this record that the claimant's continuing wage loss was not attributable to her injury, and we perceive no error in the ALJ's order. The claimant's remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated October 16, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Judy Archuleta, Greeley, CO, Eastman Kodak, Windsor, CO, One Stop Insurance, Loveland, CO, Ace Hardware, Johnstown, CO, Saint Mary's Home Care, Grand Junction, CO, Westaff of Grand Junction, Grand Junction, CO, Junction Care Health Center, Grand Junction, CO, IHS at Mesa Manor, Grand Junction, CO, Choice Hotels International, Grand Junction, CO, J. Lumbrazo, Gallagher Bassett Services, Englewood, CO, Centre Insurance Co., c/o Harvey D. Flewelling, Esq., Denver, CO, Legal Department, Pinnacol Assurance — Interagency Mail The Travelers, c/o Trecia Sigel, Ray Lego Assoc., Greenwood Village, CO, Pacific Employers, c/o Kathleen M. Fairbanks, Esq., Denver, CO, Wausau Insurance, c/o Douglas Poling, Esq., Denver, CO, Jason Houston, Sedgwick Claims Management Services, Greenwood Village, CO, Britton Morrell, Esq., Greeley, CO, (For Claimant).
David J. Dworkin, Esq. and Bernadette Wasilik, Esq., Denver, CO, (For Respondent Eastman Kodak).
Colorado Lending Grp 1 LLC, c/o Richard A. Bovarnick, Esq., Denver, CO, (For Respondents One Stop Insurance and Centre Insurance Co.).
Trecia Sigel, Ray Lego Assoc., Greenwood Village, CO, (For Respondents Westaff of Grand Junction and The Travelers).
Douglas J. Kotarek, Esq., Denver, CO, (For Respondent Junction Care Health Center).
Kathleen M. Fairbanks, Esq., Denver, CO, (For Respondents IHS at Mesa Manor and Pacific Employers).
Douglas Poling, Esq., Denver, CO, (For Respondents) Choice Hotels International and Wausau Insurance).