Opinion
W.C. No. 3-115-867
November 8, 1996
FINAL ORDER
Respondent Martin Marietta Corp. (Martin Marietta) and its insurer, Pacific Employers Insurance Company (collectively the respondents), seek review of a final order of Administrative Law Judge Martinez (ALJ) which determined that Martin Marietta was the claimant's employer for purposes of workers' compensation, and denied their request for an offset of liability against the Subsequent Injury Fund (SIF). We affirm.
The ALJ found that the claimant suffers from asbestosis, and was last injuriously exposed to asbestos while employed by the "Martin Company" between 1957 and 1961. Further, the ALJ found that the exposure to asbestos at Martin Company lasted at least sixty days or more.
The ALJ also found that, although the claimant "suffered from interstitial lung disease" in the 1980s, the "diagnosis of asbestosis was not made until October 1994." Further, the ALJ cited the opinion of Dr. William Kelley that the "claimant has been disabled from performing his usual work because of his lung disease since he left employment with Kim Nuclear Geo-Tech in November of 1994."
Under these circumstances, the ALJ concluded that the Martin Company, now known as Martin Marietta, and its insurer are liable for the claimant's occupational disease of asbestosis. Further, the ALJ denied the respondents' request for offset of liability against the SIF because the claimant's "onset of disability" from asbestosis was November 11, 1994, after the April 11, 1994 elimination of the SIF. See § 8-46-104, C.R.S. (1996 Cum. Supp.).
I.
On review, the respondents first contend that the ALJ erred in denying their request for offset of liability against the SIF. The respondents argue that the claimant sustained the "onset of disability" from asbestosis in the 1980s. In support of this proposition, they rely on evidence that the claimant was suffering from interstitial lung abnormalities as early as 1982, and the opinion of Dr. Rose that the claimant's 1987 hospitalization for atrial fibrillation was partially caused by asbestosis. (Rose Depo., pp. 9-10). The respondents' argument rests on the premise that the hospitalization constituted an "onset of disability" which occurred prior to the elimination of SIF liability pursuant to § 8-46-104. We are not persuaded.
Under § 8-46-104, cases may not be accepted into the SIF for "occupational diseases occurring on or after April 1, 1994." Moreover, as all parties concede, liability for occupational diseases is governed by the law in effect on the date of onset of the claimant's disability. 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).
An onset of disability occurs when the physical effects of the occupational disease cause work-related disability. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 220 (Colo.App. 1994). The existence of such disability may be evidenced by lost time from work, but also by reduced efficiency in the performance of regular duties. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
Determination of the date of the claimant's onset of disability requires the ALJ to make a factual finding concerning the point in time when the claimant first suffered disability. Pope v. Texas Instruments, Inc., W.C. Nos. 4-108-491, 4-173-455, November 5, 1993. Since the issue is factual in nature, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). The substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In particular, it is the province of the ALJ to assess the weight and credibility of the medical opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Additionally, we note that the ALJ is not required to make findings of fact concerning every piece of evidence. Rather, it is sufficient that the ALJ make findings concerning the evidence which he found determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, we agree with the claimant and the SIF that the record contains substantial evidence to support the ALJ's determination that the asbestosis did not become disabling until November 1994. It is true that Dr. Rose opined that the claimant had signs of asbestosis in the 1980s, and that the 1987 hospitalization was partially related to the asbestosis. However, Dr. Rose also admitted that it was "difficult to know for sure" whether the 1987 atrial fibrillation was related to asbestosis. (Rose Depo., p. 9). Dr. Rose also conceded that there was no other evidence that the claimant was impaired by asbestosis until at least 1993. (Rose Depo., p. 35). Further, the record contains evidence that the claimant has a complicated medical history which includes factors, other than asbestosis, which could explain his prior breathing problems.
Under these circumstances, the ALJ was certainly not compelled to accept Dr. Rose's opinion that the claimant was disabled by asbestosis before 1994. Moreover, Dr. Kelley's June 19, 1995 report, which the ALJ explicitly credited, provides ample basis for the ALJ's finding that the onset of disability occurred in November 1994. The fact that the ALJ did not explicitly discuss Dr. Rose's opinion, and the fact that Dr. Rose's opinion conflicted with Dr. Kelley's opinion, affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). It follows that the ALJ did not err is dismissing the SIF pursuant to § 8-46-104.
II.
The respondents next contend that the record does not contain substantial evidence to support the ALJ's conclusion that "Martin Marietta" is the successor to "Martin Company." The respondents cite the claimant's testimony that he worked for the Martin Company, and that Martin Marietta did not exist until long after he left the employment of Martin Company. (Tr. pp. 48-49). Consequently, the respondents assert that the ALJ erred in imposing liability upon them. We reject this argument.
Initially, we agree with the claimant and the SIF that the respondents, by their conduct, waived any argument which might be predicated on the alleged distinction between Martin Company and Martin Marietta. In this regard, the record reveals that the respondents filed a response to application for hearing in which they raised the issue of "insurance coverage." However, at the commencement of the hearing, the respondents did not raise this issue to the ALJ, or otherwise indicate to the ALJ that he was expected to make a distinction between Martin Company and Martin Marietta. (Tr. pp. 3-4). Thus, the respondents waived consideration of the argument. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
Moreover, the respondents submitted a position statement to the ALJ. Nowhere in their position statement did the respondents contend that the claimant failed to prove his claim on the theory that Martin Company and Martin Marietta are unrelated entities. To the contrary, at page 2 of the position statement the respondents stated that the claimant "was last exposed to asbestos from 1958 until 1961 while working for Martin Marietta." (Emphasis added). Consequently, the respondents themselves conceded that the claimant was, in effect, employed by Martin Marietta, and they may not now take a different position on appeal. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
However, even if we were to conclude that the respondents did not waive this issue, we would find no error. The claimant testified, without objection, that Martin Company became Martin Denver, and then Martin Marietta. Thus, the record contains substantial evidence to support the ALJ's conclusion that Martin Marietta was the successor to the Martin Company. (Tr. p. 48).
IT IS THEREFORE ORDERED that the ALJ's order dated May 31, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed November 8, 1996 to the following parties:
Phillip Lanham, 2557 Mira Vista Rd., Grand Junction, CO 81501
Martin Marietta Astronautics, P.O. Box 179, Denver, CO 80201-0179
Pacific Employers Ins., P.O. Box 2941, Greenwood Village, CO 80150-0141
Subsequent Injury Fund — Interagency Mail
Bernard Woessner, Esq. and Mark H. Dumm, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction , CO 81502 (For the Claimant)
J. Anthony Ogden, Assistant Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: _________________________