Opinion
W.C. No. 4-476-482
October 16, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which apportioned the award of medical and temporary disability benefits based on the Supreme Court's decision in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). Essentially, the claimant argues Anderson has been implicitly overruled by subsequent decisions. We are not persuaded.
The claimant does not dispute the ALJ's pertinent findings of fact. The ALJ found the claimant suffers from a degenerative back condition which was symptomatic even before he commenced employment with the respondent Denpak/Kroonenberg (Denpak) in 1992. The ALJ also found that the claimant's employment at Denpak required bending, lifting, and twisting, and these activities caused an occupational disease which aggravated or accelerated the claimant's preexisting degenerative condition. The back condition rendered the claimant temporarily and totally disabled commencing November 18, 1999, and the ALJ determined the claimant was entitled to medical benefits after July 14, 2000. However, crediting the opinion of the respondents' medical expert, the ALJ found that the "primary cause" of the claimant's condition was the natural progression of the preexisting degenerative disc disease. Thus, relying on Anderson v. Brinkhoff, supra, the ALJ ordered the respondents to pay 45 percent of the claimant's temporary disability and medical benefits.
On review, the claimant argues that several appellate decisions issued since Anderson v. Brinkhoff demonstrate that apportionment of medical benefits and temporary disability benefits is not proper. Specifically, the claimant cites PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996), and Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). We are not persuaded.
In Anderson v. Brinkhoff, the court held that where "there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." 859 P.2d at 825. In so doing, the court interpreted the statute currently codified at § 8-40-201(14), C.R.S. 2001, which provides that an occupational disease may not "come from a hazard to which the worker would have been equally exposed outside of the employment." Based on its interpretation of the statute, the Anderson court expressly ordered reinstatement of an ALJ's order which ruled the claimant "was entitled to 50% of the medical and disability benefits to which [the claimant] otherwise would be entitled." 859 P.2d at 821, 825. See Roberts v. Starpak, Inc., W.C. No. 4-188-242 (April 9, 1997) (holding respondents may be entitled to apportionment of medical benefits under Anderson v. Brinkhoff).
None of the published appellate decisions cited by the claimant expressly overrules Anderson v. Brinkhoff. Further, those decisions concern accidental injuries, not occupational diseases. Cf. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) ( Anderson v. Brinkhoff does not apply in cases of accidental injuries and is dependent on statute defining occupational diseases). Therefore, we are bound by Anderson v. Brinkhoff in apportioning the temporary disability and medical benefits. Further we agree with the ALJ's conclusion that Anderson is applicable to the facts as he found them.
IT IS THEREFORE ORDERED that ALJ Harr's order dated March 15, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2001. 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 October 16, 2001 to the following parties:
Ronald VanKooten, 6632 E. Dickenson Pl., Denver, CO 80224
Denpak/Kroonenberg Lumber, 1355 W. 52nd Ave., Denver, CO 80221
Pacific Employers Insurance Co. ACE USA, P. O. Box 2941, Greenwood Village, CO 80150
J. J. Fraser, III, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Bernard R. Woessner, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy