Opinion
W.C. No. 4-330-707
March 24, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) insofar as the order determined that the claimant sustained a compensable occupational disease, and denied the respondent's request for apportionment. The respondents also challenge the ALJ's denial of their request to withdraw a general admission of liability. We affirm.
The ALJ found the claimant suffers from a congenital condition which causes his joints to deteriorate. Because of this condition the claimant was required to undergo a bilateral total hip arthroplasty involving the installation of artificial joints, in March 1992. In March 1995 the claimant commenced employment with the respondent (Bonanza) as an auto detailer. The ALJ found, based on medical testimony, that this job required vigorous and repeated hip movements. (Tr. pp. 17, 21-22; Magsamen Depo. p. 16).
On February 5, 1997, the claimant fell at work and reported an injury to his right hip and knee. The claimant was referred to an authorized physician, Dr. Magsamen, who ordered x-rays of the claimant's hips. On February 20, 1997, Dr. Magsamen reported finding "no acute injury." However, he also found that the claimant's right hip replacement was deteriorating and recommended "revision of the acetabular lining." The recommended surgery was performed on March 19, 1997. Subsequently, physicians determined the claimant needs a similar repair of the left hip replacement because that joint is also deteriorating.
The respondents filed a general admission of liability indicating a date of injury of February 5, 1997. Under this admission the respondents paid for the March 19 surgery and admitted liability for temporary total disability benefits from March 19, 1997, through May 18, 1997.
The claimant filed an application for hearing seeking an order requiring the respondents to pay for reasonable and necessary medical treatment including revision of the left hip replacement. The respondents sought an order permitting them to withdraw the general admission of liability. The respondents contended that they mistakenly admitted for an accidental injury, and that the claimant sustained no compensable occupational disease.
At the hearing, the claimant presented the testimony Dr. Hughes, who opined that claimant's duties as a detailer hastened the need for surgical revision of both hip replacements. (Tr. pp. 23, 25). Dr. Hughes testified that the usual life expectancy for a hip replacement is between 15 and 20 years, and it was "unique" for a person of the claimant's age and weight to require revision after 5 years. Dr. Hughes admitted that activities of daily living performed outside of the claimant's employment tend to cause deterioration of a hip replacement over time. However, he also testified that the claimant's activities as a detailer were quantitatively different and "in excess of activities of daily living." (Tr. p. 36). Therefore, Dr. Hughes opined that the sole cause of the "acceleration" of the claimant's need for surgical revision was the claimant's employment. (Tr. p. 36).
The treating physician, Dr. Magsamen, agreed that the duties of the claimant's employment accelerated the need for surgical revision. However, he also opined that some of the need for treatment was caused by non-industrial factors involving sleep and use of the hip joints in non-industrial activities. Dr. Magsamen apportioned one-third to the claimant's employment and two-thirds to non-industrial factors.
Crediting the testimony of Dr. Hughes and Dr. Magsamen, the ALJ found the claimant sustained a compensable occupational disease to the extent the duties of his employment as an auto detailer "aggravated" the claimant's preexisting condition. The ALJ specifically determined hat the "physical demands" of the claimant's job "were a necessary pre-condition to the early wearing out of Claimant's hip replacements which tend to last, on average, between 15 and 20 years." The ALJ also concluded that apportionment is inappropriate because there was "no persuasive evidence that non-occupational factors caused, accelerated or intensified the claimant's" condition. (Conclusion of Law 4). The ALJ discredited Dr. Magsamen's testimony concerning apportionment because the "main aggravating factor established through the evidence" was the physical demands of the claimant's employment. (Finding of Fact 9). Consequently, the ALJ determined the respondents are liable for the left hip revision. (Finding of Fact 10).
The ALJ also rejected the respondents' request to withdraw the admission of liability. In Finding of Fact 4 the ALJ stated that the "injury is compensable" based on the admission of liability. The ALJ refused to permit withdrawal of the admission because she found it was not procured by the claimant's fraudulent representations. See Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981).
I.
On review, the respondents first contend the ALJ erred in finding the claimant sustained a compensable occupational disease within the meaning of § 8-40-201(14), C.R.S. 1999. Specifically, the respondents argue the evidence compelled the ALJ to find the claimant was "equally exposed" to the hazards of his disease outside of employment. In support of this proposition the respondents cite testimony of the claimant's supervisor that the claimant worked on his own car during off-duty hours, and Dr. Hughes' admission that it is important to consider the nature of the claimant's activities outside of employment. We find no error.
In Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that the equally exposing stimulus language of § 8-40-201(14) effectuates the "peculiar risk test," which requires that "hazards associated with the vocation must be more prevalent in the work place than in everyday life or in other occupations." Id. at 824. However, the court held the statute does not require that the hazardous conditions of employment be the sole cause of the disease or aggravation, and the claimant is entitled to recover "if the hazards of employment cause, intensify, or aggravate to some reasonable degree the disability for which compensation is sought." Id. at 824. If there are dual or concurrent causes of the occupational disease, the statute does not "invite a weighing of the various hazards to which a worker has been exposed throughout his lifetime — some occupational, some not — in determining whether a particular disease is occupational." Rather, if the evidence establishes that exposure to an occupational disease is not a "necessary precondition" to the development of the disease, the claimant has suffered "from an occupational disease only to the extent that the occupational exposure contributed to the disability." Id. at 825. Significantly, it has also been held that "acceleration" of a pre-existing disease process constitutes a compensable event. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990)
In reviewing the ALJ's findings concerning the existence of an occupational disease, and findings related to apportionment, we must uphold the findings if supported by substantial evidence in the record. § 8-43-301 (8), C.R.S. 1999. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, an ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law, and need not make findings of fact addressing all evidence. Rather, it is sufficient for the ALJ to make findings concerning the evidence which she finds are determinative of the issues involved. Riddle v. Ampex Corp, 839 P.2d 489 (Colo.App. 1992).
Here, the record contains ample evidence to support the ALJ's determination that the claimant sustained a compensable occupational disease. The testimony of Dr. Hughes and Dr. Magsamen establishes that the duties of the claimant's employment as an auto detailer required repeated and prolonged movement of the hip joints in excess of that which would be expected to occur during ordinary activities of daily living. Further, both physicians testified that they believed these duties contributed to the early deterioration of the claimant's hip replacements. Under these circumstances, there was ample evidence that the duties of the claimant's employment created a "peculiar risk" not generally encountered outside of the claimant's employment.
The mere fact that the claimant may have performed similar hip movements in activities of daily living, and when working on his own car, does not mandate a different conclusion. The testimony of Dr. Hughes establishes that it was the frequency and intensity of the claimant's movements while employed as a detailer which accelerated the deterioration of the hip joints beyond that which would ordinarily be expected. This testimony was sufficient to establish that, at least to some extent, the claimant's disease process (accelerated breakdown of the artificial hip joints) stemmed from a hazard which was occupational in nature. Anderson v. Brinkhoff, supra.
II.
The respondents next contend the ALJ erred by failing to apportion the claimant's temporary disability and medical benefits based on non-occupational causes of the claimant's disease process. The respondents assert that, insofar as Dr. Hughes' testimony supports the conclusion that the claimant's employment was a "necessary pre-condition" to the development of the disease, the testimony was incredible as a matter of law. In support of this proposition, the respondents point out that Dr. Hughes and Dr. Magsamen testified that approximately one percent of hip replacements fail in each of the first five years after installation. The respondents also point out there was evidence the claimant worked on his own cars, and Dr. Magsamen attributed two-thirds of the claimant's disease process to non-industrial causes. We find no error.
Where there is but one cause of the claimant's disease process, and the cause is industrial in origin, the claim is fully compensable without apportionment. It is only where there are "dual or concurrent causes" of the occupational disease that apportionment is appropriate. Anderson v. Brinkhoff, supra. Further, if the claimant establishes that occupational hazards contributed to the disease, the respondents bear the burden of proof to establish the contribution of non-occupational factors for purposes of apportionment. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Here, the ALJ found that the disease process involved the "early wearing out" of the claimant's hip joints. (Finding of Fact 8). Although the evidence establishes that most artificial joints are expected to fail within 15 to 20 years, Dr. Hughes' testimony establishes that failure after five years is "unique" for a person of the claimant's age and weight. Further, when early failure does occur, it is the product of infection or "mechanical failure of the arthroplasty." Neither of these factors was present here. (Tr. pp. 23-25).
Thus, the fact that the claimant's ordinary activities of daily living may lead to deterioration of the joints after a number of years does not vitiate the ALJ's finding, or Dr. Hughes' testimony, that the claimant's employment was a "necessary pre-condition" to the development of the designated disease process. The claimant was seeking compensation for medical benefits caused by premature deterioration of the hip joints, including medical benefits and temporary disability benefits. Dr. Hughes' testimony establishes that the cause of the premature deterioration was the claimant's employment activities. To the extent Dr. Magsamen's testimony could be interpreted as conflicting with Dr. Hughes, it was the ALJ's province to resolve the conflict.
Moreover, the ALJ was not required to conclude that Dr. Hughes' testimony was incredible as a matter of law. Although Dr. Hughes did not know what activities the claimant performed outside of employment, it was the respondents' burden to establish that the claimant performed non-industrial activities which would contribute to premature deterioration of hip joints. Cowin Co. v. Medina, supra. Although the respondents presented some evidence that the claimant worked on his cars outside of employment, that evidence did not indicate the precise nature or extent of the claimant's activities. Consequently, the ALJ was not required to infer that such activities constituted a hazardous exposure sufficient to accelerate the claimant's joint deterioration. Indeed, the ALJ declined to do so. (Conclusion of Law 4).
III.
The respondents next contend that Finding of Fact 9 warrants the conclusion that apportionment is mandated by Anderson v. Brinkhoff, supra. In that finding, the ALJ rejected Dr. Magsamen's testimony concerning apportionment because the ALJ found the testimony was not persuasive, "particularly since the main aggravating factor established through the evidence. . .was Claimant's heightened physical demands during his employment." The respondents assert that inherent in this finding is the conclusion that non-industrial causes were at least minor contributors to the claimant's disease. We find no reversible error.
As indicated, the ALJ is not held to a crystalline standard in expressing findings of fact. In Finding of Fact 8 the ALJ found that the claimant's employment was a "necessary pre-condition" to the development of the disease. In Conclusions of Law 3 and 4 the ALJ expressly rejected evidence that "non-occupational factors caused, accelerated or intensified" the claimant's condition. Thus, the order, when read in its entirety, establishes that the ALJ did not believe there were any non-occupational factors which led to early deterioration of the claimant's hip joints. Thus, we do not read Finding of Fact 9 as implicitly supporting the existence of non-occupational factors which should be apportioned under Anderson v. Brinkhoff, supra.
IV.
The respondents challenge Finding of Fact 4 insofar as it states the claimant's "injury is compensable" because of the respondents' admission of liability. The respondents also argue that the ALJ erred in refusing to permit them to withdraw the admission of liability.
In our view, these arguments are moot. Since the ALJ found, on substantial evidence, that the claimant sustained a compensable occupational disease which warrants medical treatment and temporary disability benefits, the claimant is entitled to benefits without regard to the admission. Consequently, we need not address these arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated August 16, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
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. 1999. 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 decision were mailed March 24, 2000 to the following parties:
Ricky Nichols, 749 S. Lemay Ave., #A-3308, Ft. Collins, CO 80524
Richard Jeurink, Bonanza Ford-Mercury, Inc., 341 Adams St., Wray, CO 80758-1711
California Indemnity Insurance Company, Kurt Lawrence, Sierra Insurance Group, P.O. Box 6597, Englewood, CO 80155-6597
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Royce W. Mueller, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400,
Denver, CO 80227 (For Respondents Bonanza Ford-Mercury, Inc. and California Indemnity Insurance Company)
Ultimate Support Solutions, P. O. Box 470, Ft. Collins, CO 80522-4700
TIG Fairmont Insurance Co., P. O. Box 17005, Denver, CO 80217
Traveler's Indemnity Company of Illinois, Travelers Insurance, P.O. Box 173762, Denver, CO 80217
Christopher Crabtree, Esq., 999 18th St., #3100, Denver, CO 80202 (For Ultimate Support Systems, TIG Fairmont Insurance Co., and Traveler's Indemnity Company of Illinois)
BY: A. Pendroy