Opinion
W.C. No. 4-277-896
January 27, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) dated May 21, 1996, as corrected on June 26, 1996. The claimant contends that the ALJ erred in denying his claim for temporary total disability benefits. We set aside the contested portion of the order, and remand the matter for entry of new order.
In June 1995 the claimant began working for the respondent-employer (employer) as a tire serviceman. The ALJ found that the claimant subsequently sustained a compensable low back injury, which he knew was work related, by October 6, 1995. However, the claimant continued to perform his regular job duties, including overtime, until November 16, 1995, when his employment was terminated for reasons which the claimant admits were his fault.
In December 1995, the claimant began receiving treatment for the injury from Dr. Larson, D.C. On December 26, 1995 Dr. Larson reported that, "due to the impairment this patient exhibits coupled with his occupational demands, the patient is temporarily/totally disabled at this time." On January 30, 1995, Dr. Larson released the claimant to modified work with restrictions against lifting over 25 pounds or lifting over 15 pounds repetitively.
Implicitly relying on Dr. Larson's opinions, the claimant sought an award of temporary total disability benefits from December 26, 1995 through April 19, 1996, when he obtained other employment. However, expressly citing PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ found that the claimant failed to present evidence that the back injury contributed "to some degree" to his temporary wage loss after December 25, 1995. Therefore, the ALJ denied the claim for temporary total disability benefits.
Further, the ALJ determined that even if temporary total disability benefits were awarded, the claimant would not be entitled to those benefits until after March 8, 1996, due to the imposition of penalties equal to one day's compensation for each day the claimant failed to give written notice of his injury as required by § 8-43-102(1)(a), C.R.S. (1996 Cum. Supp.).
I. A.
On review the claimant first contends that the ALJ misapplied the law in finding that he did not sustain his burden to prove a causal connection between the industrial injury and his temporary wage loss. We agree.
To obtain an award of temporary disability benefits the claimant must prove a causal connection between the industrial injury and his wage loss during the period for which benefits are sought. Section 8-42-103(1), C.R.S. (1996 Cum. Supp.); PDM Molding, Inc. v. Stanberg, supra; Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995). To sustain this burden the claimant must first prove that the industrial injury caused a "disability." As indicated by the court in PDM Molding, Inc. v. Stanberg, supra, the term "disability" refers to the claimant's physical inability to perform regular employment. See also McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995).
Under the applicable law, the attending physician's opinion of the claimant's ability to perform regular or modified employment is dispositive, and the ALJ is not free to reject an attending physician's opinion unless there are multiple attending physicians with conflicting opinions. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Because an attending physician's opinion is dispositive, the Burns court concluded that the claimant's self-evaluation is insufficient to support a finding of temporary disability. See also Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff'd. Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication) (denial of temporary disability benefits proper because claimant did not present opinion from an attending physician that she was restricted from performing her regular employment).
Here, there is no assertion, and the ALJ made no finding, that the claimant had multiple attending physicians. Consequently, Dr. Larson's opinion that the industrial injury rendered the claimant temporarily totally disabled from December 26, 1995 through January 29, 1996, is dispositive. It follows that the other evidence which the ALJ relied upon was insufficient as a matter of law to support her implicit finding that the claimant was not disabled during this period.
Moreover, Dr. Larson's December 26, 1995 determination of temporary total disability necessarily reflects a worsening of the claimant's condition subsequent to the employment termination. Thus, the evidence that the claimant was not medically restricted from performing his regular employment prior to December 26, 1995, and did perform his regular employment until November 16, 1995, is immaterial.
Similarly, Dr. Larson's opinion indicates that the claimant was medically restricted from any employment between December 25 and January 30, 1996. Therefore, the fact that the claimant was "at fault" for the loss of his employment on November 16 did not preclude the claimant from recovering temporary disability benefits commencing December 26, 1995. This is true because a claimant who is "at fault" for the loss of the employment in which the injury occurred may recover further temporary disability benefits if the industrial injury contributes "to some degree" to the wage loss for which benefits are sought. PDM Molding, Inc. v. Stanberg, supra. Because the industrial injury precluded the claimant from performing all work, the industrial injury necessarily contributed "to some degree" to the claimant's wage loss between December 26 and January 30. See Horton v. Dill, ___ P.2d ___ (Colo.App. No. 96CA0284, November 29, 1996) (since claimant was totally disabled, a subsequent non-industrial injury did not constitute an intervening event).
Accordingly, the record compels the conclusion that the claimant sustained his burden to prove a causal connection between the industrial injury and his temporary wage loss from December 25, 1995 to January 30, 1996. Consequently, insofar as the ALJ denied the claim for temporary total disability during this period on grounds that the claimant failed to establish a causal connection between the injury and the wage loss, she erred.
B.
Similarly, Dr. Larson's opinion that the claimant was restricted to modified employment which did not require lifting over 25 pounds and lifting over 15 pounds repetitively commencing January 30, 1996 was binding on the ALJ. Accordingly, the issue is whether the medical restrictions imposed by Dr. Larson precluded the claimant from performing his regular employment. If the claimant's regular job duties exceeded the January 30 restrictions, the claimant was entitled to continuing temporary total disability benefits, until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.) [(d) substantially modified 1996 Colo. Sess. Laws, ch. 173 at 827 for injuries occurring on or after July 1, 1996]. PDM Molding, Inc. v. Stanberg, supra.
The record contains some evidence which, if credited, supports a finding that the duties of the claimant's regular employment exceeded the medical restrictions imposed by Dr. Larson on January 30, 1996. See (Tr. pp. 10, 24; GCR Truck Tire Centers Physical Exam Notice June 22, 1995). However, the ALJ made no findings of fact concerning this evidence. Consequently, the ALJ's findings are insufficient to ascertain whether the claimant "disabled" after January 29, 1996.
Therefore, we must remand the matter to the ALJ for additional findings concerning whether the claimant was temporarily disabled from performing his regular employment as of January 30, 1996. If so, the ALJ must redetermine the claimant's eligibility for temporary disability benefits under PDM. Specifically, the ALJ must determine whether the disability contributed "to some degree" to the claimant's temporary wage loss from January 30, 1996 to April 19, 1996, or whether the wage loss was solely the result of the fact that the claimant was fired by the employer and could not provide a positive reference to prospective employers. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) (temporary disability benefits are precluded only when the work-related injury plays no part in the subsequent wage loss).
II. A.
In view of our remand, it is necessary to address the ALJ's further conclusion that even if the claimant established an entitlement to temporary total disability benefits, no such benefits would be owed until after March 8, 1996, due to the imposition of a reporting penalty under § 8-43-102(1)(a). As argued by the claimant, the provisions in § 8-43-102(1)(a), which require an injured employee to give written notice of an injury within four days of its occurrence, apply to "accidental" injuries, not "occupational diseases."
Here, the claimant contends that his back injury is in the nature of an "occupational disease." Therefore, the claimant argues that the ALJ misapplied the law in concluding that his entitlement to temporary disability benefits is limited by the provisions of § 8-43-102(1)(a). We agree.
Under the Workers' Compensation Act, the term "accident" refers to 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); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). In contrast, an "occupational disease," refers to an injury which results directly from the employment or the conditions under which the employment is performed, and is a natural incident of the exposure to the hazards of the employment. Section 8-40-201(14), C.R.S. (1996 Cum. Supp.); Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); cf. CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (term injury encompasses both accidental injuries and occupational diseases).
Admittedly, the determination of whether the claimant suffered an "accidental" injury or an "occupational disease" is a factual question for resolution by the ALJ, and that determination must be upheld if supported by substantial evidence in the record. Campbell v. IBM Corporation, supra. However, we agree with the claimant that there is not substantial evidence in the record to support a finding that the claimant suffered an "accidental" back injury.
In reaching this conclusion, we note that the evidence cited by the respondents does not support their contention that the claimant's back condition is the result of an "accidental injury." To the contrary, the Employer's First Report of Injury, Dr. Larson's report of December 26, 1995, and the accident report the claimant gave Dr. Larson's office do not suggest that the claimant's back pain is traceable to specific event on a particular date. See IML Freight, Inc. v. Industrial Commission, 676 P.2d 1205 (Colo.App. 1983) (fact that an occupational disease becomes acutely symptomatic does not transform it from a disease to an accidental injury).
Further, even though the ALJ did not expressly use the term "occupational disease," her findings implicitly reflect a determination that the claimant sustained an occupational disease. The ALJ relied upon the claimant's testimony to find that the claimant suffered a compensable back injury which progressively worsened. In so doing, the ALJ credited the claimant's testimony that in July 1995 he began to experience low back pain. (Tr. pp. 7, 11). The ALJ also explicitly cited the claimant's testimony that he attributed the pain to the heavy lifting requirements of his job, which included stacking tires. (Tr. pp. 8-9, 22-23; Finding of Fact 2). Similarly, the ALJ noted that the claimant told his co-workers that he injured his back "due to the strenuous work" for the employer. (Finding of Fact 3).
We also note that although the ALJ found that the claimant was aware of the compensable nature of his injury by October 6, 1995, the ALJ did not find that the injury occurred on October 6, 1995. In fact, the ALJ did not trace the injury to any particular event or date. Accordingly, we agree with the claimant that the ALJ erred in concluding that the claimant's entitlement to temporary total disability benefits is subject to penalties under the four day reporting requirement for "accidental injuries."
B.
In view of our conclusion, we necessarily reject the respondents' contention that the issue of whether the claimant suffered an "occupational disease" was not raised before the ALJ. Rather, the claimant's December 18, 1995 Workers' Claim for Compensation alleges that on "approx 10-6-95" he suffered a compensable injury "due to repetitive lifting and bending." Furthermore, at the hearing before the ALJ on the issue of "compensability" the claimant presented medical evidence and testimony that his back condition arose gradually from daily work activities involving heavy lifting. Thus, we are persuaded that the claimant consistently asserted that he suffered a compensable injury in the nature of an occupational disease.
C.
The imposition of penalties for the failure to give written notice of an occupational disease is governed by the provisions of § 8-43-102(2), C.R.S. (1996 Cum. Supp.), which states that:
"Written notice of the contraction of an occupational disease shall be given to the employer by the affected employee or by someone on behalf of the affected employee within thirty days after the first distinct manifestation thereof. . . . Actual knowledge by an employer in whose employment an employee was last injuriously exposed to an occupational disease of the contraction of such disease by such employee and of exposure to the conditions causing it shall be deemed notice of its contraction."
As stated by the court in Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995), oral notice of the injury is insufficient to satisfy the reporting requirements in § 8-43-102. Furthermore, the claimant's argument that the employer had "actual knowledge" on December 15, 1995, as evidenced by the filing of its "Employer's First Report of Injury" was not raised before the ALJ, and thus, shall not be considered for the first time on appeal. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
Here, the ALJ determined that the claimant's duty to provide written notice of the injury was triggered on October 6, 1995. However, the ALJ found that the claimant never gave the employer written notice of the injury. In support, the ALJ cited Postlewait v. Midwest Barricade, supra, for the proposition that the filing of a Workers' Claim for Compensation is insufficient to satisfy the reporting requirements in § 8-43-102, even if the employer receives the claim.
We agree with the ALJ that the Postlewait court stated that the "filing of a claim and giving written notice of an injury are two distinct actions under the Workers' Compensation Act." 905 P.2d at 24. However, that statement was made by the court to explain why it rejected the claimant's assertion that the employer's instructions not to file a claim excused him from giving written notice of the injury.
More importantly, the Postlewait court did not conclude that the filing of a Workers' Claim for Compensation is legally insufficient to satisfy a claimant's statutory obligation to report an injury. To the contrary, the Postlewait court upheld the imposition of penalties under § 8-43-102(1)(a) for the period of time prior to the date the claimant gave the employer written notice of the injury pursuant to the filing of a claim for workers' compensation. We also note that the statute does not require that written notice of the injury be provided in any particular form. Cf. Smith v. Myron Stratton Home, 676 P.2d 1196, 1201 (Colo. 1984) (penalty for failure timely to admit or deny liability terminated as of date of hearing where employer denied liability).
Consequently, the ALJ erred insofar as she found that the filing of a claim for workers' compensation cannot constitute written notice of the contraction of an occupational disease. To the contrary, where the claimant asserts that he gave the employer written notice of an occupational disease pursuant to the filing of a Workers' Claim for Compensation, the ALJ must determine the date the employer received written notice of the Claim.
We recognize the ALJ's further finding that, even if the filing of the claim for workers' compensation was written notice of the injury it was 73 days late. However, because the claim is governed by § 8-43-102(2) and not § 8-43-102(1)(a), the ALJ's calculations are not consistent with the applicable law, and must be set aside.
Lastly, because the ALJ erroneously applied § 8-43-102(1)(a), her findings are insufficient to determine whether she recognized and considered the language in 8-43-102(2), which states that if the claimant fails to give notice of the occupational disease within thirty days of the first manifestation, the ALJ may reduce the claimant's compensation:
"[I]n such manner and to such extent as the [ALJ] deems just, reasonable, and proper under the existing circumstances."
Therefore, we are unable to ascertain what penalty the ALJ would have had imposed had she correctly applied the law. Under these circumstances, it is necessary to remand the matter to the ALJ for additional findings and the entry of a new order concerning the claim for temporary disability benefits.
On remand the ALJ shall redetermine whether the claimant sustained his burden to prove an entitlement to temporary total disability benefits for the period January 30, 1996 to April 19, 1996. Furthermore, the ALJ shall apply § 8-43-102(2) in determining whether the claimant failed timely to report the injury to the employer. If so, the ALJ shall reduce the claimant's temporary total disability benefits for the period December 26, 1995 through January 29, 1996, and any benefits the claimant is entitled to receive from January 30, 1996 to April 19, 1996, in such a manner as she "deems just, reasonable and proper" under the circumstances of the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated May 21, 1996 as corrected on June 26, 1996, is set aside insofar as the ALJ denied a claim for temporary total disability benefits, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed January 27, 1997 to the following parties:
Robin L. Durrough, 2515 Verde Dr., Apt. #104, Colorado Springs, CO 80910
Bridgestone Firestone, Inc., 2560 Carmel Dr., Colorado Springs, CO 80910-1002
Lisa Fields, GCR Truck Tire Centers, Inc., 500 Capitol of Texas, Highway South, Building 4, Austin, TX 78746
Kim Bills, Gallagher Bassett Services, Inc., The Quorum West, 7935 E. Prentice Ave., Ste. 305, Englewood, CO 80111
Insurance Company of the State of Pennsylvania
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3000 (For the Claimant)
Karen Gail Treece Esq., Kathleen M. North, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondents)
By: ______________________________________________