Opinion
W.C. No. 4-702-779.
January 24, 2008.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated August 20, 2007, that found the claimant had sustained a compensable carpal tunnel syndrome and ordered the respondent to pay the claimant's medical costs and temporary disability benefits. Because we conclude that the ALJ's factual findings are insufficient to permit appellate review, we set aside the order and remand for further findings.
The ALJ's pertinent findings of fact are as follows. The claimant worked for the employer as a receptionist and her work duties included keyboarding and phone work. The claimant noticed "carpal tunnel syndrome like symptoms" in her right hand that progressively got worse at the end of 2005. The claimant underwent surgery in the form of a right carpal tunnel release. The ALJ found that the claimant's carpal tunnel syndrome was proximately caused by her job duties with the employer and awarded benefits.
I.
On appeal, the respondents first contend that the ALJ overlooked the fact that the claimant originally sustained her occupational disease while previously employed at a dialysis center in 2004. The respondents argue that the ALJ failed to make any specific findings regarding whether the claimant sustained a substantial permanent aggravation of the occupational disease. The respondents contend that such specific findings are a prerequisite for an order assessing liability upon a subsequent employer for temporary disability benefits.
Section 8-41-304(1), C.R.S. 2007, provides that:
Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any on the risk when such employee was last so exposed under such employment shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.
The purpose of § 8-41-304(1) is to assign liability for an occupational disease where the claimant has been exposed to the hazards of the disease during successive employments. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Seyhouwer v. Kristin F. Robbins, D.D.S. W. C. Nos. 4-462-729, 4-471-878 (May 20, 2003). The statutory language in § 8-41-304(1), which requires proof of a "substantial permanent aggravation," applies when there is an occupational disease in the first instance that is aggravated by subsequent employment. See Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993); Fisher v. United Parcel Service, W.C. Nos. 4-114-768 4-221-453, May 8, 1996; aff'd, (Colo.App. No. 96CA0943, February 20, 1997) (not selected for publication). Consequently, the "substantial permanent aggravation" standard may apply where the claimant suffered an occupational disease in the employ of a previous employer. See Cooper v. Delta County Memorial Hospital W. C. No. 4-275-780 (March 12, 1997). See also Clemons v. Harrison School District #2 W.C. Nos. 4-357-814, 4-311-981 4-351-568 (August 8, 2000).
In Monfort v. Rangel, the issue was whether the correct standard or definition of "substantial permanent aggravation" was applied in awarding the claimant temporary disability and medical benefits in a claim where the claimant had a preexisting carpal tunnel syndrome. The court determined that liability was now limited to those employers in whose employ there has been exposure to a harmful concentration of the hazard and the effect of such exposure is a substantial and permanent aggravation of the previous condition. Monfort, 867 P.2d at 124-25.
Further, the last employer may be solely responsible for a claimant's occupational disease that is separate and distinct from a previous occupational disease. Cf. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001) (discussing liability of respective employers where claimant suffered separate and distinct back conditions).
The respondents point out that the claimant was diagnosed with right carpal tunnel syndrome in 2004 as a result of working at a dialysis unit. Tr. 13-14. There was a recommendation on February 4, 2004 from her medical care provider that she see Dr. Labosky for surgery for that condition. Exhibit G at 102. The claimant testified that her preexisting carpal tunnel syndrome was asymptomatic on the date she began work at the employer. Tr. p. 14. Dr. Labosky performed a right carpal tunnel release on November 9, 2006. Exhibit B at 18.
The ALJ found that the claimant had a prior history of carpal tunnel syndrome dating back to at least February 2004 and that medical records noted that the claimant required surgery for which a referral to Dr. Labosky was provided. The ALJ further found that the claimant did not undergo surgery. The claimant testified that her carpal tunnel syndrome symptomatology improved over time and was asymptomatic when she began working for the employer. Full Findings of Fact, Conclusions of Law, and Order at 3 (unpaginated), ¶ 4.
The ALJ did find that the claimant's carpal tunnel syndrome was proximately caused by her work duties with the employer and not equally from a hazard outside her work. He further found that the claimant's medical care and treatment was causally related to her compensable carpal tunnel syndrome. However, we are unable to discern from the ALJ's findings if in considering the claimant's prior industrial occupational disease whether she suffered a substantial permanent aggravation thereof or a distinct and separate occupational disease in her last employment. Therefore, on remand the ALJ must enter findings of fact concerning the previous industrial occupational disease sustained by the claimant and whether the claimant suffered a substantial permanent aggravation thereof or a new occupational disease during her employment as a receptionist.
II.
The respondents next contend that the ALJ erred on the issue of medical benefits by ordering the respondents to pay for treatment that was caused by claimant's employment with the dialysis center. The respondents argue that the evidence established that the claimant's need for treatment, including surgery, arose prior to her employment with the employer.
In Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986), the court held that in a claim based upon an occupational disease, the insurance carrier "on the risk" at the time medical expenses are incurred is liable for payment of those medical expenses. Further, the court later explained that "on the risk" means the employer in whose employment the need for treatment was caused. University Park Care Center v. Industrial Claim Appeals Office, supra. Therefore, to shift liability from one insurer to a subsequent insurer, there must be proof that the employment during the subsequent insurer's coverage caused, aggravated, or accelerated the claimant's condition. Marshall v. Jerry's Nuthouse W. C. Nos. 4-224-538 4-347-623 (March 05, 2002). See also Rodriguez v. Benny's Concrete, Inc., W.C. No. 3-825-227 (February 24, 1999), aff'd sub nom. Rodriguez v. California Indemnity Insurance Company, (Colo.App. No. 99CA0475, October 21, 1999) (not selected for publication) (insurer on the risk when vocational rehabilitation becomes necessary is liable for cost of vocational rehabilitation).
The ALJ did find that the claimant's carpal tunnel syndrome was proximately caused by her work duties with the employer and not equally from a hazard outside her work. The ALJ found that her medical care and treatment was causally related to her compensable carpal tunnel syndrome. The ALJ made no findings regarding whether the previous employment at the dialysis center or her work as a receptionist with the employer here, caused the need for treatment.
We acknowledge that the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
We agree with the claimant that the ALJ was not compelled to find that the February 4, 2004 surgical recommendation established that the need for medical treatment in 2006 was unrelated to the claimant's employment activities with the employer in this case. However, the ALJ must make factual findings that are sufficient to permit appellate review. Section 8-43-301(8), C.R.S. 2007. Although the ALJ referred to the history of the prior industrial carpal tunnel syndrome in 2004 and the referral for surgery, it is unclear from the findings whether the ALJ found the previous employment at the dialysis center or her work as a receptionist with the employer here, caused the need for the disputed medical treatment. Therefore, on remand the ALJ must enter findings of fact concerning the previous industrial occupational disease sustained by the claimant and the extent to which it contributed, if at all, to the claimant's need for treatment.
IT IS THEREFORE ORDERED that the ALJ's order dated August 20, 2007, is set aside and remanded for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
CONNIE JOHNSON, COTOPAXI, CO (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO (Insurer).
STEVEN U MULLENS, P.C., Attn: RICHARD M LAMPHERE, ESQ., COLO SPGS, CO (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: DAVID L SMITH, ESQ., DENVER, CO (For Respondents).
PINNACOL ASSURANCE, Attn: SCOTT NEILSON, DENVER, CO (Other Party).