Opinion
W.C. No. 4-536-702
April 16, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which held them responsible for temporary disability and medical benefits payable on account of the claimant's occupational disease. We affirm the award of temporary disability benefits, and dismiss the remainder of the appeal for lack of a final order.
The claimant was employed as a machine operator for Schlage Lock from 1997 through April 18, 2002. The employment required highly repetitive use of the upper extremities which caused the claimant to develop an occupational disease diagnosed as bilateral carpal tunnel syndrome (CTS). The employer provided modified employment within the claimant's medical restrictions.
On April 9, 2002, Dr. Dickson increased the claimant's restrictions to include no bike riding, which had been the claimant's mode of transportation to work. Consequently, the claimant began riding the bus to work. However, no bus was available early enough to get him to work by 6:30 a.m. when his shift began. Therefore, the claimant requested a shift change, but the request was denied. On April 18, 2002, the claimant was fired for being late to work on April 17 and 18.
From February 18 to June 2002, the claimant was employed as a dishwasher and cook at Zio's Restaurant. In June and July the claimant worked at Old Chicago Restaurant.
Throughout most of her treatment Dr. Dickson attributed the claimant's CTS to his employment activities at Schlage Lock. However, at hearing, Dr. Dickson opined the CTS was caused by the claimant's bicycling or the restaurant work.
The ALJ found the claimant's CTS was an occupational disease caused by his employment at Schlage Lock, and that it was not substantially and permanently aggravated by bicycling or the claimant's subsequent employment. In so finding, the ALJ was not persuaded by Dr. Dickson's testimony. (Finding of Fact 7). Further, the ALJ determined the claimant was not responsible for the termination of his modified employment on April 18, 2002. Therefore, the ALJ ordered the respondents to pay temporary disability benefits commencing April 18. The ALJ also determined the claimant's average weekly wage and ordered the respondents to provide reasonable and necessary medical benefits.
The respondents timely appealed the ALJ's order. We note the respondents' Designation of Record includes the Division of Workers' Compensation file. The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is nothing in the record which indicates 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.
I.
On review, the respondents first contend the record compels a finding that the claimant's condition was substantially and permanently aggravated during successive employment or the claimant's bike riding. We disagree.
Section 8-41-304(1), C.R.S. 2002, provides:
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 employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.
This statute was enacted to apportion liability in occupational disease cases and to impose liability on the last employer or insurer in cases where the disease was incurred over a period of employment encompassing several employers or insurers. A "last injurious exposure" occurs when the claimant is exposed to a "concentration" of the hazards of the disease such that prolonged exposure to the hazards would be sufficient to cause the disease. However, the "substantial permanent aggravation" requirement focuses on the "magnitude and effect" of the last injurious exposure, and requires that it result in a substantial and permanent aggravation of the previous condition. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Determination of whether the claimant's condition is the result of the original injury or a substantial permanent aggravation is a factual question for resolution by the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ's determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2002. Under this standard, we must defer to the ALJ's credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Further, the ALJ's findings may be supported by inferences from circumstantial evidence . Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
The respondents concede the ALJ credited the claimant's testimony and rejected the testimony of the respondents' witnesses to find the respondents failed to prove a substantial permanent aggravation or intervening injury. However, they contend the ALJ's findings are legally insufficient because the ALJ failed to explain the basis for her credibility determinations.
Contrary to the respondents' contention, the ALJ is not required to articulate the basis for her credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987). Rather, the ALJ's credibility determinations are sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991). Thus, the absence of a specific explanation for the ALJ's decision to credit the claimant's testimony that his condition was not permanently aggravated after he left Schlage Lock is not a fatal defect in the order. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ not held to crystalline standard in articulating findings of fact).
Further, the claimant's testimony supports the ALJ's determination. The claimant admitted that certain activities in employment with Zio's and Old Chicago made his hand pain increase. However, he stated that he modified his work activities at Zio's to successfully reduce the pain and that Old Chicago transferred him to work as a prep cook which was easier on his hands. (Tr. pp. 17, 23, 24). He added that his hand pain was not worse during his employment at Zio's and Old Chicago than it had been when he worked at Schlage Lock. (Tr. p. 23).
It is true the claimant admitted he sought emergency treatment for hand pain while riding his bicycle and those symptoms prompted Dr. Dickson to medically preclude the claimant from bike riding. However, the claimant testified that he did quit riding his bike for a time after the imposition of that restriction. (Tr. p. 36).
Although the record suggests the claimant resumed bicycle riding at some later date, the medical record does not compel a finding that the bicycle riding caused a permanent aggravation to the claimant's condition. Dr. Dickson's diagnosis and medical restrictions remained unchanged after the claimant sought emergency room treatment on April 12 for increased hand pain after bicycle riding. In fact, the medical records do not document any change in the claimant's diagnosis or objective condition after March 27, 2002.
II.
Relying on McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995), the respondents next contend the ALJ misapplied § 8-42-105(4), C.R.S. 2002, in awarding temporary disability benefits. We are not persuaded there was any error.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Once the claimant has established an entitlement to temporary disability benefits, such benefits "shall continue" until "the first occurrence of" one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 2002. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
However, § 8-42-105(4), which applies to injuries occurring on or after July 1, 1999 [1991 Colo. Sess Laws, ch. 90, at 266], provides that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court concluded § 8-42-105(4), introduces a limited concept of "fault" which focuses on the reason or reasons for the termination of employment. Slip op. p. 7. A claimant is "responsible" for the termination if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Cf. Padilla v. Equipment Corp., 902 P.2d 414 (Colo.App. 1994). However, the mere fact that an employer discharged the claimant in accordance with the employer's policy does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).
Here, the ALJ found that when the treating physician medically precluded the claimant from riding his bicycle, the industrial disability prevented the claimant from using his normal mode of transportation to work. As a result, the claimant had to take a bus to work which caused him late for his work shift. Further, the ALJ reasonably inferred that the claimant was discharged for the resulting tardiness.
The ALJ's findings are supported by the record, and therefore must be upheld. Further, the findings also support the ALJ's determination that the claimant did not act volitionally in causing the tardiness which precipitated the employment termination. Consequently, there was no error in the ALJ's determination that the claimant was not responsible for the termination.
The respondents' arguments notwithstanding, our conclusions are not inconsistent with McKinley v. Bronco Billy's, supra. McKinley applied § 8-42-105(3)(c), C.R.S. 2002, which governs the termination of temporary disability benefits when the claimant is released to "regular employment." In McKinley the claimant suffered a compensable eye injury. The attending physician released the claimant to return to her regular employment, but due to the injury, the claimant had difficulty driving to work. The claimant's job did not involve driving and the claimant did not dispute the physician's opinion that she was physically capable of performing her regular employment duties. Because there were no medical restrictions which impaired the claimant's ability to perform her regular employment, the McKinley court held that the inability to drive to work did not preclude the termination of temporary disability benefits under § 8-42-105(3)(c).
The respondents also cite Anglada v. Clara Corp., W.C. No. 4-143-083 (September 28, 1995), where the claimant was prohibited from walking, biking, or driving to work and the treating physician opined that it would be "reasonable" for the employer to provide the claimant with transportation to perform modified employment. Relying on McKinley v. Bronco Billy's, supra, we held that restrictions on a claimant's ability to travel to work did not constitute a restriction on the claimant's ability to perform "modified employment." Consequently, we held that the claimant's failure to begin the modified employment triggered the termination of benefits under § 8-42-105(3)(d).
The question of whether modified employment is within the claimant's medical restrictions is separate and distinct from whether the claimant is responsible for the loss of modified employment within his physical restrictions. Consequently, the respondents' reliance on McKinley and Anglada is misplaced.
Here, it is undisputed the claimant was medically restricted from performing his regular employment. Further, the ALJ found Schlage Lock provided modified employment within the claimant's medical restrictions, and the claimant began that modified employment. Consequently, the pertinent issue is not whether the temporary disability benefits properly terminated by application of § 8-42-105(3)(c) and (d). Rather, the issue is whether there was any causal connection between the injury and the claimant's loss of wages after April 18 when he was discharged from the modified employment. Because McKinley and Anglada were decided prior to the enactment of § 8-42-105(4), neither case purported to consider the application of the statute. Consequently, this claim is legally distinguishable.
The respondents' remaining contentions have been considered and are not persuasive. We disagree that our disposition requires employers to provide transportation to and from work for their employees. In contrast, § 8-42-105(4) is not intended to penalize an injured claimant who is unable to perform modified work due to circumstances beyond his control.
III.
The respondents also contend the award of medical benefits is not supported by the applicable law. We conclude this portion of the ALJ's order is not currently subject to review.
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied "with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review." Orders which do not either award or deny benefits or penalties are not final and reviewable. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Further, an order may be partially final and partially interlocutory. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
In light of these principles, we have previously held that a general award of medical benefits is not final and reviewable unless the record demonstrates that liability for specific medical treatment was at issue. The rationale for these decisions is that the respondents maintain the right to contest the reasonableness and necessity for particular medical benefits. E.g., Rosas v. DDC Interiors, Inc., W.C. No. 4-364-828 (August 18, 1999); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994).
Here, the ALJ's order does not award or deny the claimant any particular medical benefit. In fact, no particular benefit was requested. Further, the ALJ did not determine whether any previous treatment was reasonable, necessary, and related to the industrial injury. Under these circumstances, this portion of the ALJ's order is interlocutory and not currently subject to review. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
However, we note that § 8-41-304(1) does not govern the determination of liability for medical benefits in a claim based upon an occupational disease. This is because in the context of § 8-41-304(1), the term "compensation" does not include "medical benefits." Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986). Accordingly, liability for medical benefits is not dependent upon the employment in which the claimant was "last injuriously exposed" or whether the claimant suffered a "substantial permanent aggravation." Rather, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. Collins, supra.
The employer "on the risk" is the employer whose employment caused need for medical treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Thus, where a respondent seeks to impose liability on a subsequent insurer or employer, the evidence must establish that during the time of coverage by the subsequent insurer, the employment caused, aggravated, or accelerated the occupational disease before the subsequent insurer may be considered "on the risk" for medical expenses. University Park Care Center v. Industrial Claim Appeals Office, supra. IT IS THEREFORE ORDERED that the ALJ's order dated October 2, 2002, is affirmed insofar as it requires the respondents to pay temporary disability benefits.
IT IS FURTHER ORDERED that the respondents' petition to review the order on medical benefits is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
___________________________________ 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. 2002. 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 April 16, 2003 to the following parties:
Robert Scott, 1026 Dale St., Colorado Springs, CO 80903
Kaye Schnider, Schlage Lock, 3899 Hancock Expressway, Colorado Springs, CO 80911
Evelyn Radmacher, PEI c/o ESIS, P. O. Box 2941, Greenwood Village, CO 80150
Dale W. Pedersen, Esq., 3 S. Tejon St., #205, Colorado Springs, CO 80903 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Hurtado