Opinion
W.C. No. 3-825-227
October 2, 1998
ORDER OF REMAND
The respondents, Benny's Concrete (the employer) and the Colorado Compensation Insurance Authority (CCIA), seek review of an order of Administrative Law Judge Gandy (ALJ) dated February 3, 1998. The respondents contend the ALJ erred in requiring them to pay for vocational rehabilitation benefits. We set aside the order and remand for the entry of a new order.
In 1985, the claimant sustained an occupational disease affecting his shoulders. At the time of the injury, the employer was insured for workers' compensation by American States Insurance Company (American). From April 12, 1991 to April 1, 1995, the employer was insured by the CCIA. Effective April 1, 1995, California Indemnity Insurance Company (California) became the insurer.
In an order dated December 12, 1995, the ALJ ordered California to pay for all medical expenses incurred by the claimant after May 15, 1995, with the exception of the shoulder surgery performed by Dr. Duncan, which the ALJ ordered be paid by the respondents. The ALJ also determined that the claimant was last injuriously exposed to the hazards of the disease when the employer was insured by the CCIA. Therefore, the ALJ held the respondents liable for the temporary disability benefits awarded to the claimant on account of the occupational disease.
The claimant reached maximum medical improvement on April 9, 1996, and was physically unable to return to his pre-injury occupation. Therefore, the claimant requested vocational rehabilitation benefits as provided by former § 8-49-101(4), C.R.S. (1986 Repl. Vol. 3B) [repealed 1987 Colo. Sess. Laws, ch. 51 at 387-394, effective July 1, 1987 (Senate Bill 79)].
The ALJ determined the claimant is eligible for vocational rehabilitation. Furthermore, the ALJ determined that vocational rehabilitation is not a "medical benefit." Instead, the ALJ determined that the insurer on the risk when the claimant was last injuriously exposed to the hazards of the disease is solely liable for the cost of vocational rehabilitation. Consequently, the ALJ held the respondents liable for claimant's vocational rehabilitation benefits.
On appeal the respondents contend that the ALJ erroneously determined that vocational rehabilitation is not a form of medical benefit. The respondents also point out that the December 1995 order requires California to pay for all medical expenses incurred after May 15, 1995. Therefore, the respondents argue that California is responsible for the claimant's vocational rehabilitation benefits. We conclude that the matter must be remanded for additional findings.
Former § 8-51-112 C.R.S. 1975 (repealed and reenacted as 8-41-304 C.R.S. 1990), which governs this claim, provides that liability for "compensation" benefits due on account of an occupational disease is governed by the "last injurious exposure" rule. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). However, in Royal Globe the Supreme Court concluded that, in the context of § 8-41-304(1), the term "compensation" does not include medical benefits. 723 P.2d at 736. Therefore, the Supreme Court held that the last injurious exposure rule does not govern liability for medical benefits due on account of an occupational disease. Instead, the court concluded that the insurance carrier "on the risk" at the time medical expenses are incurred is liable for the payment of those medical expenses. 723 P.2d at 736.
In State Compensation Insurance Fund v. Velasquez, 628 P.2d 190 (Colo.App. 1981), the court held that vocational rehabilitation benefits awarded under former § 8-49-101(4) are a form of medical benefits, and not the equivalent of temporary disability benefits. In reaching this conclusion the court expressly noted that the General Assembly authorized vocational rehabilitation in that portion of the Workers' Compensation Act which deals with medical benefits, rather than the article establishing disability benefits. 628 P.2d at 191. Therefore, the court concluded that vocational rehabilitation income maintenance benefits are not subject to the disability pension offset statute.
Implicitly relying on Velasquez, we concluded in Garcia v. King Soopers, W.C. No. 3-75-280 (July 22, 1986), that vocational rehabilitation benefits awarded under former § 8-49-101 are medical benefits. The claimant contends that Garcia was wrongly decided. However, Garcia is consistent with the holding in Velasquez, and we must follow published appellate decisions. C.A.R. 35(f).
California concedes that vocational rehabilitation benefits awarded under former § 8-49-101, are medical benefits. However, California contends that the statutory amendments enacted by Senate Bill 79 and Senate Bill 91-218, no longer treat vocational rehabilitation benefits as medical benefits, and only discuss vocational rehabilitation benefits in the context of temporary and permanent disability. See §§ 8-42-105(1) 8-42-112(3), C.R.S. 1998. Therefore, California asserts that liability for vocational rehabilitation benefits is determined by the same test which governs liability for "disability" benefits in the case of an occupational disease. We reject this argument.
The rights and liabilities of parties to a workers' compensation claim based upon an occupational disease are governed by the law in effect at the time of the "onset of disability." Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994). Because the claimant was injured in 1985, his entitlement to vocational rehabilitation is governed by former section 8-49-101(4), C.R.S. 1975. See former § 8-51-108.5 C.R.S. (1989 Cum. Supp.); Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988). Accordingly, the substantive amendments enacted by Senate Bill 79 and Senate Bill 91-218 are not applicable to this claim.
Because the applicable law classified vocational rehabilitation benefits as a form of medical benefits it follows that any vocational rehabilitation benefits awarded to this claimant constitute medical benefits and not "disability" benefits. See State Compensation Insurance Fund v. Velasquez, supra. Moreover, the insurer "on the risk" is liable for medical benefits due on account of an occupational disease. See Royal Globe Insurance Co. Collins, supra.
We have previously held that the question of whether an insurer was "on the risk" at the time medical expenses were incurred is to be determined under the usual rules governing liability for workers' compensation benefits. See Wallace v. Home Base W.C. No. 4-210-135 (June 6, 1996); Rigdon v. Doubletree Hotels, W.C. Nos. 4-175-649, 4-211-377, (March 18, 1996); Martinez v. Storage Technology Corp., W.C. No. 4-175-875, (August 31, 1995). We concluded in these cases that in order to impose liability for medical benefits on a particular employer or insurer the evidence must establish a causal connection between the need for medical benefits and the employment. In other words, the evidence must show that the employment caused, aggravated, or accelerated the occupational disease before that employer or insurer may be considered "on the risk" for medical expenses. This is true because the "last injurious exposure rule" is an exception to the usual rule which places liability on the employer or insurer which caused the need for treatment.
Because the ALJ incorrectly determined that vocational rehabilitation benefits are not a form of medical benefit, the ALJ erroneously applied the last injurious exposure rule in determining which insurer is liable for the claimant's vocational rehabilitation benefits. Therefore, we set aside the ALJ's order and remand the matter for the entry of a new order.
We are mindful of the fact that, with one exception, the ALJ's December 1995 order requires California to pay for all medical expenses incurred after May 15, 1995. California did not appeal the December 1995 order, and therefore, we do not consider whether the ALJ misapplied the law in requiring California to pay any medical expenses.
However, the issue of vocational rehabilitation was not before the ALJ in December 1995, and the December order does not purport to adjudicate liability for vocational rehabilitation benefits. Furthermore, the December 1995 order expressly reserved all other issues for future determination. Consequently, the December 1995 order does not resolve the specific issue presented here.
On remand the ALJ must determine the cause of the claimant's need for vocational rehabilitation benefits. In other words, the ALJ must determine which insurer was on the risk during the employment which resulted in the claimant's inability to "perform work for which he has previous training or experience." Section 8-49-101(4).
In view of our disposition we necessarily reject California's contention that the CCIA should be "estopped" from denying liability for the claimant's vocational rehabilitation benefits because the CCIA "failed and refused" to provide vocational rehabilitation while it was the employer's insurer. To establish equitable estoppel it must be demonstrated that the CCIA made factual representations which another party detrimentally relied. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996). Therefore, California's factual assertions do not support an application of the doctrine of equitable estoppel.
IT IS THEREFORE ORDERED that the ALJ's order dated February 3, 1998, is set aside and the matter is remanded to the ALJ for the 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 October 02, 1998 to the following parties:
Domingo Rodriguez, 1028 E. 7th St., Loveland, CO 80537
Benny's Concrete, Inc., P.O. Box 1644, Loveland, CO 80539-1644
California Indemnity Ins., 5575 DTC Parkway, Ste. 335, P.O. Box 6597, Englewood, CO 80155-6597
George Edwards, American States Ins. Co., 1770 25th Ave., Greeley, CO 80631
George Edwards American States Ins. Co., P.O. Box 441540, Aurora, CO 80044
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Stephen J. Jouard, Esq., P.O. Drawer J, Ft. Collins, CO 80522 (For the Claimant)
Clyde E. Hook, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (American States Respondents)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (California Indemnity Respondents)
Frank Cavanaugh, Esq. Thomas M. Scrant, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (CCIA Respondents)
BY: _______________________