Opinion
W.C. No. 4-630-309.
January 31, 2006.
FINAL ORDER
The respondents seek review of an order dated September 7, 2005 of Administrative Law Judge Felter (ALJ) that determined the conditions and hazards of the claimant's employment, working on concrete floors, proximately caused his bilateral knee condition. We modify the order to reflect that the insurer is not responsible for medical costs incurred before the insurer was on the risk and otherwise affirm the order.
The claimant worked as a mechanic for the employer for approximately fifteen years. The claimant spent the majority of his day on his feet on concrete floors, with occasional kneeling and crouching as necessary to work on each car. In February, 2004 the pain in the claimant's knees became so severe that he sought treatment with Dr. Koldenhoven and also reported to his employer regarding the pain in his knees.
Dr. Koldenhoven in a report dated October 22, 2004 stated that the daily regimen that is required by the claimant's work, aggravated the degenerative changes in his knee. The ALJ found the opinion of Dr. Koldenhoven to be persuasive and that the claimant aggravated a preexisting degenerative condition in both knees by standing and kneeling on concrete floors at his workplace. The ALJ determined that the claimant had proven by a preponderance of the evidence that he has suffered an occupational disease to both knees proximately caused by his employment.
On review the respondents contend that there is no substantial evidence to support the ALJ's finding that the claimant's injuries are the result of walking on concrete floors. The respondents argue that under § 8-41-304(1), C.R.S. 2005, the evidence would not support a finding, that the claimant sustained "substantial permanent aggravation" of the preexisting knee problems during the period of time the employer was covered by the named insured. The prior insurers had settled their claims, and so the respondents argue that the claimant must carry the burden to prove a substantial permanent aggravation which normally falls on the insurer seeking to shift liability. Atlantic Pacific Insurance Company v. Barnes, 666 P.2d 163 (Colo.App. 1983). We disagree with this argument.
The respondents correctly state that the claimant has the burden of proof to establish that the conditions of the employment were a direct and proximate cause of the alleged occupational disease. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant has met the initial burden to prove causation is one of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Although causation need not be proven by expert medical evidence, where such evidence is presented it is for the ALJ to determine its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ need not make findings concerning every piece of evidence provided there are findings demonstrating the evidence found dispositive by the ALJ. Evidence not mentioned is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The ALJ recognized that the claimant had the burden of proof and found that the claimant had carried the burden in part because the ALJ credited Dr. Koldenhoven's opinion. The respondent's assertion notwithstanding, Dr. Koldenhoven's report supports the ALJ's findings, particularly in connection with the claimant's testimony. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002. The reports of Dr. Lindberg and Dr. Scott and the testimony of Dr. Lindberg certainly are evidence which, if credited, might support a contrary determination. However, this does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo. App 1981) (expert medical evidence not dispositive of causation).
As the respondents acknowledge if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under § 8-40-201(14), C.R.S. 2005 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought. Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993).
The respondents are the last employer and insurer, prior insurers having settled their claims. Section 8-41-304(1), C.R.S. 2005, provides that liability for an occupational disease is governed by the "last injurious exposure" rule. Royal Globe Insurance Co. Collins, 723 P.d. 731 (Colo. 1986). Under that rule, the employer in whose employment the claimant is "last injuriously exposed to the hazards of such disease and suffered a substantial, permanent aggravation" is solely responsible for the injury without contribution from any other employer. Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). Because this statute permits an employer and its insurer to shift liability to other employers and insurers, the statute creates an affirmative defense. See Cowin and Co. v. Medina, 860 P.2d 535 (Colo.App. 1992) (party relying upon a statutory exception has the burden of establishing the factual predicate for its application).
The substantial permanent aggravation element was added to the statute to mitigate the harsh effects of the last injurious exposure rule on subsequent employers and insurers. Monfort, Inc. v. Rangel, 867 P.2d 122, 124-25 (Colo.App. 1993). Under this rule, the employer in whose employment the claimant was last injuriously exposed and "suffered a substantial, permanent aggravation" of the occupational disease is solely liable for all compensation due on account of the disease. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). The burden to prove a "substantial, permanent aggravation" rests with the insurer that seeks to shift liability to a subsequent insurer. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983) (burden of proof determined by which party would be successful if no evidence was presented; burden of proof is then placed on the adverse party).
The respondents' assertions notwithstanding, the ALJ correctly ruled that the "compensability" of occupational diseases is determined by the criteria established in § 8-40-201(14), C.R.S. 2005. In contrast, § 8-41-304(1), including the last injurious exposure and substantial permanent aggravation elements, establish a standard for apportioning liability for an occupational disease when the disease was incurred over several different employments or while a single employer was covered by multiple insurers. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Bennett v. Asplundh W.C. No. 4-532-142 February 12, 2004).
Contrary to the respondents' argument, substantial, albeit conflicting, evidence supports the ALJ's finding that there was an aggravation of the claimant's preexisting condition in the employment. First, the ALJ noted that the work of an auto mechanic is unique and, therefore, a logical comparison cannot be made between the activities of daily living of an average individual and the activities of daily living of an auto mechanic. The ALJ could logically infer from this evidence that the conditions and hazards of the claimant's employment with the employer (working on concrete floors four to five hours per day) proximately caused his bilateral knee condition, and the claimant was not equally exposed to these hazards outside of his employment. Specific Findings of Fact, Conclusions of Law and Order at 4 ¶ b. The ALJ found that the requirements of the claimant's job established a work environment that was sufficient to aggravate the arthritic condition in both knees. Whether or not the claimant sustained a compensable occupational disease while employed by Midas Auto System was resolved by the ALJ against the respondent.
Moreover, the claimant's testimony supports the ALJ's findings. The claimant testified that in July, 2004 he started using a chair because the pain in his knees was excruciating. Tr. at 20. However, the chair "did not take away the worsening of the condition" Tr at 22. In June 2004 the claimant began active treatment involving injections Tr. at 39. The ALJ could infer from this testimony that the effect of the exposure after May 1, 2005 when the respondent insurer came on the risk, was a permanent aggravation of the previous condition. Gorsuch v. AMP W.C. No. 4-0588-229 (July 18, 2005)
The claimant presented medical evidence from which it could be inferred the conditions of his employment aggravated his preexisting degenerative condition in both knees. This evidence included the report of Dr. Koldenhoven. Although the claimant was not required to prove causation by medical evidence, where, as here, such evidence was presented, it was for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The respondents argue that Dr. Koldenhoven did not use a legal definition of "aggravate." To the extent this is true it goes only to the weight of his opinion. Maes v. Federal Fruit, W.C. No. 4-246-932 (May 10, 2001). 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 respondents argue that Dr. Koldenhoven only stated that the work "aggravated" the condition, and that there is no evidence demonstrating that he used the term in its "legal context". The ALJ was not required to draw the inference suggested by the respondents. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (question of whether increased pain experienced in subsequent employment demonstrates an "aggravation" of the prior injury or merely a logical and recurrent consequence of the prior injury is question of fact for ALJ). To the extent respondents are arguing that the doctor's use of the term "aggravation" may not be equated with the legal term "substantial permanent aggravation," we have held that its definition is consistent with a layman's understanding, and Dr. Koldenhoven was fully qualified to express an opinion as an expert on this matter. Maes v. Federal Fruit, W.C. No. 4-246-932 (May 10, 2001). Moreover, the ALJ's inference from Dr. Koldenhoven's opinion was a plausible one and we may not disturb it.
The respondents also argue that the ALJ erred in finding that the concrete floors were a "special hazard" of the claimant's employment. Citing Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985), the respondents assert that a concrete floor may not be a "special hazard" as a matter of law. However, Gates dealt with the question whether a level concrete surface upon which the employee struck his head following a seizure constituted a "special risk of employment" so as to make the injury compensable. The court did indeed find that a ubiquitous condition of level concrete surfaces did not constitute a "special risk of employment." However, this is not a case in which the claimant was injured by an idiopathic condition such as the seizure disorder present in Gates. Rather, the ALJ's reference to the special hazard of a concrete floor was in the context of the definition of an "occupational disease" under § 8-40-210 (14) C.R.S. 2005. Given the ALJ's findings that the claimant worked from four to five hours on the concrete floor, and was not equally exposed to such conditions off the job, we conclude that the ALJ understood the requirements of the statute and properly applied them. In our view, there is no indication that the ALJ erroneously analyzed this case as one under the special hazard exception to the idiopathic injury rule.
The respondents also argue that the award of medical benefits was in error, insofar as the order did not distinguish between medical costs incurred before and after May 1, 2004, the date Employers Compensation Insurance began insuring the employer. The provisions of § 8-41-304(1) apply to the apportionment of liability for "compensation," not medical benefits. Rather, the insurer "on the risk" at the time medical benefits are incurred is liable for such benefits. Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986). The term "on the risk" refers to the insurer "that provided coverage to the employer whose conditions of employment caused the need for treatment." Thus, the insurer "on the risk" when medical expenses are "incurred" is the carrier which insured the employer whose conditions of employment caused the need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).
When read in its entirety, it is clear that the ALJ recognized that Employers Compensation Insurance, insured the employer from the date of May 1, 2004. See Issues in Specific Findings of Fact, Conclusions of Law and Order at 2. The parties had stipulated that the medical treatment provided by Dr. Koldenhoven is authorized, reasonably necessary and causally related to the compensable occupational disease. See Issues in Specific Findings of Fact, Conclusions of Law and Order at 4 ¶ 12. Under these circumstances, we are persuaded that the error, if any, in not specifying the date of May 1, 2004 as the time Employers Compensation Insurance became liable for medical expenses was a mere oversight and in the nature of a clerical error. § 8-43-310, C.R.S. 2005. The claimant, in his brief in opposition, concedes this point and a remand is not warranted. The ALJ's order shall be corrected to clarify the date after which Employers Compensation Insurance became liable for medical costs incurred by the claimant.
IT IS THEREFORE ORDERED that the ALJ's order dated September 7, 2005, is modified to reflect that Employer Compensation Insurance is not responsible for medical costs incurred by the claimant before May 1, 2004 and the order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
David Sorden, Longmont, CO., Midas Auto Systems, Boulder, CO., Libby Hood, Employers Compensation Insurance, Boise, ID., Peter H. McGuire, Esq., Denver, CO., (For Claimant).
Brett R. Parnes, Esq., Denver, CO, (For Respondents).