Opinion
W.C. No. 4-488-749
January 13, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant sustained a compensable occupational disease, determined the average weekly wage (AWW), and awarded temporary disability benefits. The order also rejected the respondents' argument that the claim is barred by the statute of limitations and that the claimant is subject to a penalty for late reporting of the injury. We affirm.
The claimant alleged that her duties as an LPN required lifting hospital patients, and that this activity aggravated a preexisting degenerative condition of the lumbar spine. The ALJ credited the claimant's testimony and the opinions of Dr. Mercer to find the claimant's work-related lifting caused a compensable occupational disease.
The ALJ further found the disease disabled the claimant from May 18, 1998, through July 29, 1998, when Dr. Mercer released the claimant to regular employment. However, the ALJ further found the claimant's condition worsened in October 1998, and the claimant was restricted through July 20, 1999. Thus, the ALJ awarded temporary disability benefits for these periods of time.
The ALJ rejected the respondents' argument the claim is barred by the two-year statute of limitations found at § 8-43-103(2), C.R.S. 2002. In this regard, the ALJ found the claimant did not file a claim for benefits until January 2001. However, the ALJ found the statute of limitations was tolled in May 1998 because the claimant told her supervisor that she believed work was causing her back symptoms, but the employer did not report an occupational disease or lost time injury as required by § 8-43-101(1), C.R.S. 2002. The ALJ further found that in August 1998 the employer received a medical report which was sufficient to alert the employer that the claimant might have sustained a work-related injury. Finally, the ALJ concluded the claimant had a reasonable excuse for not filing the claim because she did not recognize the "magnitude" of her injury until after the statute of limitations had run.
The ALJ also rejected the respondents' argument that the claimant is subject to penalties for failure to report the injury in writing as required by § 8-43-102(1)(a), C.R.S. 2002. In this regard, the ALJ held that the imposition of penalties under the statute is discretionary, and the circumstances do not warrant a penalty. Specifically, the ALJ determined the employer elected to treat the matter as a disability claim rather than a workers' compensation claim, despite the fact the claimant told the supervisor that she believed the injury was work-related.
I.
On review, the respondents first contend the ALJ erred in finding the claim is not barred by the statute of limitations. According to the respondents, the evidence does not support the ALJ's finding the claimant told her supervisor that she believed her condition to be work-related. Further, the respondents assert the medical record cited by the ALJ does not support the conclusion that the statute of limitations was tolled. We disagree with these arguments.
In resolving the respondents' argument, the ALJ correctly applied the law. Section 8-43-103(2) provides that the statute of limitations does not begin to run if the "employer has been given notice of an injury and fails, neglects, or refuses to report said injury to the division" as required by the Act. The circumstances which require the employer to report to the Division of Workers' Compensation (Division) are set forth in § 8-43-103(1), C.R.S. 2002, and § 8-43-101(1), C.R.S. 2002. These include the requirements to notify the Division of permanently impairing injuries, lost-time injuries, and the contraction of occupational diseases. City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998).
An employer has notice of an occupational disease or lost-time injury when it obtains some knowledge of facts connecting the claimant's injury or condition with the employment, and indicating to a reasonably conscientious manager that a the case may involve a potential claim for benefits. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984); Wilson v. Radisson Hotel-Denver, W.C. No. 3-839-812 (April 8, 1998).
The question of whether the employer was placed on notice sufficient to trigger its reporting duties is largely one of fact. Hence, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). In this regard, we note that if the testimony of a witness contains an internal inconsistency, the ALJ may resolve the inconsistency by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Here, the claimant testified that in May 1998 she told her supervisor that she believed her back pain might be associated with lifting on the job, but could not identify any specific incident which triggered her symptoms. (Tr. pp. 38, 42, 79). Although the supervisor testified to the contrary, the ALJ credited the claimant's testimony. Thus, there is substantial evidence to support the ALJ's conclusion that the claimant provided her supervisor with information that would have placed a reasonably conscientious manager on notice of a potential claim for benefits. To the extent the claimant's testimony contained some inconsistencies, or might have supported another finding, the ALJ implicitly resolved the inconsistency in the claimant's favor.
Similarly, the evidence supports the finding that the August 18, 1998 medical report issued by Dr. Belleville triggered the employer's duty to report. Although Dr. Belleville was less than definitive in analyzing the causation issue, he identified the degenerative condition and stated "this may be aggravated by work" or any strenuous activity. The ALJ could reasonably infer, under the totality of the circumstances, that receipt of this report would place a conscientious manager on notice of a potential claim for benefits.
It follows the record supports the ALJ's conclusion that the statute of limitations was tolled by the employer's failure to report the injury to the Division. In light of this determination, we need not consider whether the claimant showed a reasonable excuse for avoiding the statute of limitations.
II.
The respondents next contend substantial evidence does not support the ALJ's determination that the claimant's disease was caused by the conditions of her employment. In this regard, the respondents assert that the testimony of Dr. Mercer, which the ALJ credited, is incredible as a matter of law. The respondents argue Dr. Mercer was unaware of some of the claimant's medical history and that the doctor's opinions are illogical. We perceive no error.
It is certainly true the claimant was required to prove the alleged occupational disease was caused by the conditions of her employment. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. The question of whether the claimant met the burden of proof is one of fact for the ALJ, and we must uphold her determination if supported by substantial evidence. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Where, as here, there is expert opinion concerning the issue of causation, it is for the ALJ to assess its weight and credibility. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Further, testimony is not incredible as a matter of law unless it is at odds with established fact or the laws of nature. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). The fact that a physician may not be aware of all aspects of a claimant's medical history is relevant to the credibility of the opinion, not its admissibility. See Albo v. Industrial Commission, 167 Colo. 467, 447 P.2d 1006 (1968).
Here, Dr. Mercer's opinion that the claimant's heavy lifting at work aggravated the preexisting lumbar condition is not incredible as a matter of law. Dr. Mercer was aware of the nature of the claimant's farming activities and her duties as an LPN. Having this knowledge, Dr. Mercer opined to a reasonable degree of medical probability that the lifting of patients was most likely the cause of her symptoms. (Mercer Depo. pp. 8, 11, 28-30). This opinion was corroborated by the claimant's testimony which described her farming activities as being less strenuous than the lifting of patients in her job as an LPN. Further, as the ALJ found, even Dr. Belleville restricted the claimant from returning to work as an LPN. It is true that Dr. Mercer was unaware of certain aspects of the claimant's medical history. However, she did not change her opinion on causation when she became aware of these facts, and under these circumstances it was for the ALJ to assess Dr. Mercer's credibility.
Neither do we perceive any logical fallacy in Dr. Mercer's reasoning which would render her testimony incredible as a matter of law. One plausible reading of Dr. Mercer's testimony is that the farm work was probably not strenuous enough to cause more than muscle pain, while the LPN work was heavier and aggravated the claimant's underlying spinal condition. (Mercer Depo. pp. 32-33, 43). The fact that other interpretations are possible affords no basis for relief on appeal.
III.
The respondents next contend the ALJ erred in awarding temporary disability benefits for the period beginning in October 1998. The respondents argue the evidence does not support the ALJ's determination the condition worsened after she was released to regular employment in July 1998, but if a worsening occurred it was unrelated to the occupational disease. We perceive no error.
It is true that temporary disability benefits cease when the claimant's attending physician releases the claimant to regular employment. Section 8-42-105(3)(c), C.R.S. 2002. However, if the injury-related condition subsequently worsens and results in additional restrictions which impair the claimant's ability to perform work, temporary disability benefits may be reinstated. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
The questions of whether the claimant proved a worsened condition, and whether the worsening resulted in additional disability, are determinations of fact for the ALJ. Cordova v. Industrial Claim Appeals Office, supra; Chapman v. Dow Chemical Co., W.C. No. 4-102-842 (May 12, 2000), aff'd. Dow Chemical Co. v. Industrial Claim Appeals Office, (Colo.App. No. 00CA1044, December 21, 2000) (not selected for publication). Medical evidence is not necessary to establish disability, although it may be considered when presented. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Because these issues are factual, we must uphold the ALJ's determination if supported by substantial evidence in the record.
Here, there is ample evidence that the claimant's condition worsened in October 1998, that the worsening was causally-related to the industrial injury, and that the worsening resulted in additional impairment of the claimant's earning capacity. Dr. Mercer testified that she diagnosed the claimant with hip and back pain, and there was "no change" in that diagnosis between July and October 1998. Further, Dr. Mercer testified the claimant's condition worsened between July and October 1998 as evidenced by tenderness to palpation of the lumbar area and a positive straight leg raising test. (Mercer Depo. Pp. 20-21). Further, In October 1998 Dr. Mercer reimposed restrictions which precluded the claimant from working as an LPN. Dr. Mercer clearly attributes the claimant's symptoms to the occupational disease. Thus, Dr. Mercer's testimony, taken with the claimant's testimony, amply supports the award of temporary disability benefits.
The respondents assert the claimant's disability commencing in October 1998 was attributable to intervening bursitis of the hip. However, the ALJ implicitly rejected this argument and found the disability was attributable to the occupational disease. This was a factual determination for the ALJ, and her determination is supported by the record. In any event, the disability need not be solely attributable to the industrial injury if it is caused to some degree by the injury. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996); Chapman v. Dow Chemical Co., supra. The same conclusions apply to the alleged intervening event in 2001.
IV.
The respondents next contend the ALJ erred in declining to impose a penalty of one day's compensation for each day the claimant failed to report the injury in writing. In this regard, we note the claimant sustained an occupational disease, not an accidental injury. Thus the controlling provision is § 8-43-102(2), C.R.S. 2002, which requires written notice of the contraction of an occupational disease within 30 days of the first distinct manifestation thereof.
In any event, the ALJ correctly determined that imposition of a late reporting penalty is discretionary because the statute states the ALJ "may" reduce the claimant's compensation. Emigh v. Wal-Mart Stores, Inc., W.C. No. 4-151-148 (April 14, 1995). Because the imposition of a penalty is discretionary, we may not interfere with ALJ's order unless it is beyond the bounds of reason, as where the order is unsupported by the evidence or contrary to the law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (2001).
Assuming, arguendo, that a penalty could be imposed under the facts of this case, we perceive no abuse of discretion in the ALJ's refusal to do so. The ALJ found the claimant orally advised her supervisor of the alleged occupational disease, but the employer elected to treat the matter as a disability claim rather than a workers' compensation matter. Further, in August 1998 the employer referred the claimant to its own physician for an examination. Thus, the evidence supports the inference that the employer had actual, if not written, notice and the employer's ability to defend was not adversely affected by the lack of a written notification. Under these circumstances, the ALJ acted within the bounds of reason in declining to impose a penalty.
V.
The respondents next contest the ALJ's determination of the claimant's AWW insofar as it included the value of health insurance. The ALJ found that when the claimant left employment in May 1998 she was offered health insurance benefits with a weekly value of $150 "per COBRA." Apparently, the claimant was unable to purchase the COBRA insurance. (Tr. p. 11). However, on a subsequent but unknown date the claimant purchased less expensive health insurance which cost approximately $75.74 per week. The ALJ calculated the claimant's AWW to include the $150 per week for the COBRA insurance.
On review, the respondents argue the ALJ should have based the AWW on the $75.74 since this represents the "actual cost" of the insurance. Under the circumstances, we are not persuaded.
Section 8-40-201(19)(b), C.R.S. 2002, provides the term "wages" includes the "employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan." It has been held that insurance need not actually be purchased in order for the value of the insurance to be included in the AWW. Humane Society of the Pikes Peak Region, 26 P.3d 546 (Colo.App. 2001).
Here, the claimant established the initial cost of continuing the employer's group health insurance was represented by the COBRA charge. The record does not disclose when the COBRA benefits, and hence continuation of the employer's insurance, ceased to be available to the claimant. Cf. Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997) (purchase of COBRA insurance treated as continuation of employer's group policy). Neither does the record disclose when the claimant was able to "convert" to the less expensive insurance plan.
Under these circumstances, the record supports the ALJ's determination that the claimant's AWW should include her cost of continuing the group plan through COBRA. The claimant established the cost of continuing the employer's group health insurance under COBRA. Thus, the claimant established the right to have the COBRA cost added to her AWW. To the extent the respondents wished to establish that there was a lower "cost of conversion" on the date when COBRA benefits were no longer available, they had the burden to establish the cost of the lesser health insurance and the date on which the conversion occurred. Cowin Co. v. Medina, 860 P.2d 535, 538 (Colo.App. 1992) (burden of proof is on the party relying on a statutory exception, on the party asserting the affirmative of a proposition, and consideration should be given to which party would prevail in the absence of any evidence). As the claimant argues, the respondents did not establish the date on which the claimant's cost of conversion was reduced. This ruling does not preclude the respondents from obtaining an adjustment of the AWW in the future.
IT IS THEREFORE ORDERED that the ALJ's order dated March 14, 2002, is affirmed.
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______January 13, 2003___ to the following parties:
Susan Doughty, 34310 WCR 13, Windsor, CO 80550
Yvonne Chudd, Poudre Valley Health Care, Inc., 1024 S. Lemay Ave., Ft. Collins, CO 80524-3998
Denise Groves, Support Services, P.O. Box 3513, Englewood, CO 80155-3513
Regina M. Walsh Adams, Esq., 7251 W. 20th St., #G-2, Greeley, CO 80634 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
By: __________A. Hurtado__________