Opinion
W.C. Nos. 4-536-309; 4-536-314
April 23, 2004
FINAL ORDER
The claimant and the respondents separately petition for review of an order of Administrative Law Judge Stuber (ALJ). The respondents contend the ALJ erroneously determined the claimant suffered a compensable occupational disease to her upper back. The claimant contends the ALJ miscalculated the average weekly wage (AWW). We affirm.
The claimant was employed as a certified nursing aide in the employer's long-term nursing facility. In 1991 the claimant suffered an accidental injury to her upper back. The claimant resumed her pre-injury employment with permanent lifting restrictions.
The ALJ determined the claimant suffered a compensable occupational disease. In support, the ALJ found the employer instituted administrative changes in April 2001, which substantially increased the claimant's work duties. On March 27, 2002, the claimant sought treatment from Dr. Walton for complaints of cervical, thoracolumbar, and lumbosacral pain with severe right hip and knee pain. Dr. Walton opined the claimant's back condition was work related and imposed a 10 pound lifting restriction. Dr. Rook performed an independent medical examination on October 14, 2002. Dr. Rook diagnosed myofascial pain in the low back and right hip, bilateral sacroiliac joint dysfunction, bilateral knee chondromalacia, sleep disturbance, and reactive depression. Dr. Rook opined these conditions were caused by an occupational disease in the nature of a cumulative trauma disorder.
The ALJ also found the claimant became temporarily totally disabled effective April 1, 2002, and the employer did not continue to provide group health insurance after that date. However, the claimant did not continue her group health insurance under COBRA and did not purchase substitute health insurance. Relying on Midboe v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0159, September 25, 2003), the ALJ therefore, determined that the replacement cost of the employer's group health insurance is not includable in the AWW. Therefore, the ALJ awarded temporary disability benefits based on an AWW of $470.51.
I.
On review the respondents contend the ALJ's findings are insufficient to permit appellate review because the ALJ failed to identify which of these workers' compensation claims is compensable. We disagree.
Initially, we note that the respondents' Designation of Record includes the "files of the Division of Workers' Compensation and Division of Administrative Hearings." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. Further, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
Section 8-40-201(14), C.R.S. 2003, defines an "occupational disease" as:
"a disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work, as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of employment."
For purposes of receiving disability benefits, the claimant does not sustain a compensable occupational disease until the "onset of disability." Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The "onset of disability" occurs when the disease impairs the claimant's ability to perform regular employment effectively or claimant is incapable of returning to work except in a restricted capacity. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
Further, we note that the ALJ is not held to a crystalline standard in articulating his findings of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Rather, the ALJ's findings are sufficient if we are able to discern the ALJ's factual determinations and the reasoning that underlies the conclusions. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
In W.C. No. 4-536-309, the claimant alleged cervical, thoracic and psychiatric injuries on October 1, 2001. In W.C. No. 4-536-314 the claimant alleged a psychiatric injury and physical injuries to her hips, knees and lumbar spine on March 6, 2002.
The ALJ found the claimant sustained her burden to prove an occupational disease affecting her low back, right hip, knees and upper back. The ALJ also found the claimant suffered the onset of disability in March 2002. Thus, the ALJ's findings reflect his implicit determination that the claimant established the compensable nature of some of the injuries alleged in both claims with the onset of disability in March 2002. (Finding of Fact 26).
Next, the respondents contend the record fails to support the ALJ's finding that the claimant suffered a compensable occupational disease to her upper back. Again, we disagree.
The question of whether the claimant's medical problem is the result of a worsening of a prior injury, or an occupational disease is factual. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Consequently, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
As argued by the respondents, the ALJ relied on Dr. Rook's testimony concerning the cause of the claimant's occupational disease. However, we reject the respondents' contention that Dr. Rook's opinions are inconsistent with the ALJ's finding of a compensable occupational disease to the upper back.
As stated by the ALJ, a compensable occupational disease may result from the industrial aggravation of a pre-existing, non-occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the claimant is not required to prove that the industrial exposure was either "substantial" or "permanent." To the contrary, the statutory language in § 8-41-304(1), C.R.S. 2003, which requires proof of a "substantial permanent aggravation" only applies when there is an occupational disease that is aggravated by subsequent employment. See Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Rather, a "temporary" aggravation of a pre-existing condition is compensable, as long as the industrial exposure is the proximate cause of the claimant's temporary disability or need for medical treatment. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988); see also Conry v. City of Aurora, W.C. No. 4-195-130, April 24, 1996. (industrial ammonia exposure resulted in compensable temporary aggravation of pre-existing asthma). Pain is a typical symptom from the aggravation of a pre-existing condition and the claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment-related activities and not the underlying pre- existing condition. See Merriman v. Industrial Commission, supra.
Accordingly, Dr. Rook's testimony that the claimant did not suffer a "permanent aggravation" of her preexisting upper back injury is not inconsistent with the ALJ's finding of a compensable occupational disease to the upper back. (Tr. June 9, 2003, p. 125). Indeed, Dr. Rook acknowledged the claimant's reports of increasing upper back pain in the fall of 2001 related to a change in her work duties. However, Dr. Rook did not examine the claimant until she had been off work for 6 months during which the claimant's upper back pain had subsided. Under these circumstances, Dr. Rook merely opined that no further treatment was required for the upper back condition.
In any case, a claimant is not required to present medical evidence to prove the cause of the condition. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). To the contrary the claimant's testimony, if credited, may be sufficient to establish the requisite nexus between the industrial injury and the disability for which benefits are sought. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
The ALJ expressly credited the claimant's testimony. Finding of Fact 26. The respondents' arguments notwithstanding, the claimant's testimony contains substantial evidence to support the ALJ's implicit finding that the claimant's worsened upper back condition was the result of an occupational disease caused by the repetitive activities of her increased job duties in 2001 and early 2002. (Tr. June 9, 2003, pp. 32, 39, 40, 89). Further, the claimant's testimony is buttressed by the opinions of the claimant's former co-worker, Pearl Skinner, and is consistent with the records of Dr. Rook and Dr. Walton. Therefore, the respondents' arguments do not afford us a basis to interfere with the ALJ's finding of a compensable occupational disease to the upper back and evidence this component of the occupational disease was temporary does not compel a contrary result.
II.
The claimant contends the ALJ erroneously relied on Midboe v. Industrial Claim Appeals Office, supra, in refusing to include the replacement cost of health insurance in the AWW. The claimant argues Midboe is inconsistent with Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001), which the claimant asserts is the pertinent authority on the issue. We reject this argument.
Section 8-40-201(19)(b), C.R.S. 2003, provides that the term wages shall include gratuities reported to the Internal Revenue Service, the reasonable value of room and board, rent, housing, and lodging received from the employer plus:
"the amount of 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."
The statute creates an exception where the employer continues to pay the advantage or fringe benefit after the injury including health insurance.
In Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997), a panel of the court reasoned that the statute was enacted to "insure that disabled claimant would have access to funds for the purchase of `similar or lesser' health insurance when the employer no longer pays part of the premium for such insurance and held that the actual cost of the claimant's Medicare insurance was included in the AWW. However, the court expressly refused to consider whether the cost of insurance is included in the AWW if the injured worker does not actually purchase substitute insurance.
In Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, supra, a different panel of the court held that the employee's cost of substitute insurance is included in the AWW, not the employer's portion of the group health insurance premium at the time of the injury. Further, the Humane Society court noted the insurer's argument that the claimant is required to prove the actual purchase of substitute insurance to establish her entitlement to reimbursement by way of an increased AWW. Ibid at 549. In dicta, the court concluded that:
"the statute does not require proof that the claimant has actually purchased coverage. When and where to purchase coverage is a decision for the claimant. The statute merely seeks to insure that the claimant will have funds available to make the purchase."
However, another panel of the court subsequently issued Midboe v. Industrial Claim Appeals Office, supra, where the issue was whether the AWW includes the premium paid by the claimant for group health insurance where the claimant remains employed and the employer continues to pay a portion of the insurance. The court held that under these circumstances, the claimant's wages are not compromised by excluding the cost of health insurance from the AWW. The Midboe court reasoned that the terms "continuing" and "conversion" are specialized terms of art derived from the Consolidated Omnibus Budget and Reconciliation Act of 1985 (COBRA) currently codified at § 10-16-108 C.R.S. 2003. Based upon the specialized meaning of these terms the Midboe court concluded that:
"AWW includes the cost of health insurance only when a claimant has `continued' the employer's coverage at his or her own cost pursuant to COBRA or § 10-16-108, and, thereafter, when that coverage ends and the claimant has converted to other coverage."
Furthermore, the Midboe court rejected an argument that Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, supra, requires a different result. The court concluded the opinion in that case " simply acknowledged the statutory requirement that the employee's entire cost of continuing coverage following her termination including the amount paid for dependent coverage, was to be included into her AWW." (Emphasis added).
Thus, the Midboe court apparently did not read Humane Society to hold that the claimant is not required to prove the actual purchase of replacement insurance to establish that the cost of replacement insurance be included in the AWW.
Midboe is the court's most recent published decision on the issue. Under these circumstances, we feel compelled to follow the court's reasoning in Midboe. Therefore, in view of the undisputed fact that the claimant failed to prove she actually purchased replacement insurance the ALJ did not err in refusing to include the employee's cost of continuing health insurance in the AWW.
IT IS THEREFORE ORDERED that the ALJ's order dated November 6, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ David CainNOTICE
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. 2003. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 23, 2004 by A. Hurtado.
Jodie Marsh, 5102 Galley Rd., Lot 101A, Colorado Springs, CO 80915
Sunnyrest Health Care, 2400 E. Cache La Poudre, Colorado Springs, CO 80909-4899
Legal Department, Pinnacol Assurance — Interagency Mail
Stephanie J. Stevenson, Esq., 815 N. Nevada Ave., #100, Colorado Springs, CO 80903 (For Claimant)
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)