Opinion
W.C. No. 4-696-191.
January 25, 2008.
ORDER OF REMAND
The claimant and the respondents both seek review of an order of Administrative Law Judge Cannici (ALJ) dated August 24, 2007 that found the claimant suffered a compensable occupational disease, ordered payment of temporary total disability (TTD) benefits and determined the claimant's average weekly wage (AWW) to be $652.96. We dismiss without prejudice the respondents' arguments concerning the award of medical benefits. Otherwise, we set aside the order and remand the matter for entry of a new order.
The ALJ's pertinent findings of fact are as follows. The claimant worked for 27 years as an underground hard rock miner and inhaled silica dust throughout his mining career. The claimant last worked full-time as an underground miner at the employer's mine from January 1988 until November 1989, earning $652.96 each week. The claimant was not exposed to silica dust after November 1989. From 1991 through February 8, 2006, the claimant was employed as a health and safety manager for Halliburton. The claimant credibly testified that in the two years prior to February 2006 he began experiencing shortness of breath and fatigue because of his rigorous travel schedule with Halliburton. On the issue of the claimant's entitlement to TTD, the ALJ found that the respondents failed to establish by a preponderance of the evidence that the claimant committed a volitional act that resulted in his termination of employment from Halliburton.
The ALJ concluded that the claimant established by a preponderance of the evidence that he sustained the occupational disease of silicosis during the course and scope of his employment with the employer. The claimant's silicosis was caused by occupational exposure to silica and can be fairly traced as a proximate cause of his employment with the employer. The claimant suffered a last injurious exposure while working for the employer that resulted in a permanent and substantial aggravation of his condition. The ALJ awarded TTD benefits from February 8, 2006 at the rate of $652.96 and found the respondents financially responsible for authorized medical treatment that is reasonable and necessary to cure and relieve the effects of the claimant's occupational disease.
I.
The claimant contends that the ALJ erred in basing the claimant's AWW on wages earned at the time of the last injurious exposure in 1989 ($652.96) instead of at the time of the onset of disability in 2006 ($1,459.48). We conclude that the ALJ's findings of fact are insufficient to permit appellate review of the basis for his decision and, therefore, we remand the matter for entry of a new order. Section 8-43-301(8), C.R.S. 2007.
Wage calculations are reviewed under an abuse of discretion standard. To be set aside, the ALJ's wage calculation must be shown to exceed the bounds of reason. Coates, Reid Waldron v. Vigil, supra, 856 P.2d at 856 ( citing Rosenberg v. Bd. of Educ., 710 P.2d 1095, 1098-99 (Colo. 1985). In resolving whether a wage calculation exceeds the bounds of reason, reviewing courts "may specifically consider whether an award is supported by the applicable law." Coates, Reid Waldron v. Vigil, supra, 856 P.2d at 856; Mousaabadi v. King Soopers, W. C. No. 4-242-075 (November 9, 1999).
Compensation benefits are calculated based upon an injured employee's AWW. Section 8-42-102(1), C.R.S. 2007. The term "wages" is defined by the Workers' Compensation Act (the Act) as "the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury." Section 8-40-201(19)(a), C.R.S. 2007.
The "date of injury" for an occupational disease is the date of the onset of disability, and the law in effect on that date governs the rights and liabilities of the parties. See Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994); SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994); Ortiz v. Charles J. Murphy Co. 964 P.2d 595 (Colo.App. 1998). The onset of disability occurs when the occupational disease impairs the claimant's ability effectively and properly to perform his or her regular employment, or renders the claimant incapable of returning to work except in a restricted capacity. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). Although a claimant's AWW is based upon his or her wages "at the time of injury," in cases of occupational disease, the "time of injury" is generally held to be the time of last exposure or the onset of disability. Campbell v. IBM Corp, 867 P.2d 77, 81 (Colo.App. 1993); See also Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991); Thomas v. Target Corporation, Inc., W.C. No. 4-683-268 (June 29, 2007).
In Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991) the court determined that the decedent's average weekly wage should be based on the higher wage he earned in 1983, when he first became disabled by asbestos-induced cancer, rather than the lower wage he earned in 1977, when he was last injuriously exposed to asbestos. The court noted in Henderson that the decedent's benefits "must" be determined based upon his wages and the statutory maximum rate in effect at the onset of his disability. The court explained that the Act compensates for disability or death resulting from an occupational disease, not the mere existence of a disease process. Spencer v. Union Carbide Corporation, W. C. No. 4-580-221 (December 27, 2004).
Here the ALJ did not identify a date of the claimant's onset of disability from the occupational disease. The ALJ did determine that the claimant did not recognize the probable compensable character of his condition until approximately two years before February 2006. The ALJ further noted that the claimant did not feel any disabling effects from the silicosis until approximately two years before 2006, when he began noticing shortness of breath and fatigue. The ALJ found that the effects of the claimant's silicosis prevented him from performing his assigned duties and caused his job separation on February 8, 2006. However, no specific date was identified as the onset of disability.
ALJs are granted broad discretion in determining "whether the circumstances of a particular case require [an ALJ] to employ an alternative method of computing compensation benefits based upon the employee's [AWW]." Coates, Reid Waldron v. Vigil, supra; Avalanche Industries, Inc. v. Industrial Claim Appeals Office 166 P.3d 147 (Colo.App. 2007). Indeed, the Act provides that "in each particular case, [the ALJ] may compute the [AWW] of said employee in such other manner and by such other method as will, in the opinion of [the ALJ] based upon the facts presented, fairly determine such employee's [AWW]." Section 8-42-102(3), C.R.S. 2006.
The entire objective of the wage calculation under the Act is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity. Although the AWW generally is determined from the employee's wage at the time of injury, if for any reason this general method will not render a fair computation of wages, the administrative tribunal has long been vested with discretionary authority to use an alternative method in determining a fair wage. See Campbell v. IBM Corp, supra.
Here, the ALJ determined that an AWW of $652.96 constitutes a fair approximation of the claimant's wage loss and diminished earning capacity. However, the ALJ's order does not identify any factual circumstances in support of the general conclusion that the AWW of $652.96 fairly approximates the claimant's wage loss. Since the basis for this conclusion is unclear, the findings are insufficient to determine whether the ALJ's order is an abuse of discretion. Furthermore, because the ALJ made no specific determination of the onset of the claimant's disability we are unable to ascertain what impact such a finding might have had on his determination of AWW.
Under these circumstances, it is appropriate to remand the matter to the ALJ for a new determination of the claimant's AWW, with specific findings to support the ALJ's conclusion concerning the appropriate AWW. Our remand should not be understood as requiring the ALJ to increase the claimant's AWW. It is necessary, however, that the ALJ enter findings, which provide a sufficient basis for reviewing the exercise of his discretion.
II.
On appeal the respondents contend that the order finding that the claimant was last injuriously exposed and that there was a substantial and permanent aggravation of the claimant's silicosis while working for the employer is not supported by substantial evidence and by applicable law. The respondents argue that the ALJ made no findings of fact that the claimant's work at the Camp Bird Mine was sufficient in concentration and time to cause an injurious exposure to silica. The respondents further argue that there is no substantial evidence in the record to support a finding that the claimant's pre-existing silicosis was aggravated in a permanent and substantial manner by his employment with employer. In our view the record contains substantial evidence to support the finding that the claimant sustained a last injurious exposure at the employer's mine. However, we agree with the respondents' argument that the findings of fact are insufficient to establish that the claimant sustained a substantial permanent aggravation of his condition in that employment. Because the findings of fact in that regard are insufficient to permit appellate review, we must remand the matter for further findings regarding the substantial permanent aggravation of the claimant's condition.
Where compensation is payable for an occupational disease, and the claimant was employed by more than one employer, § 8-41-304(1), C.R.S. 2007, assigns responsibility for disability benefits to the employer where the claimant was "last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof." Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). The "last injurious exposure" test and the "substantial permanent aggravation" test impose separate prerequisites to liability. An injurious exposure occurs when the claimant is exposed to the hazards of the disease in a concentration that would be sufficient to cause the disease in the event of prolonged exposure, without regard to the length of the actual employment.
The questions of where the claimant was last injuriously exposed and whether there has been a substantial permanent aggravation are ones of fact for determination by the ALJ. Monfort Inc. v. Rangel, supra. Consequently, we must uphold the ALJ's resolution of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
In our opinion there was substantial evidence in the record to support the ALJ's resolution of the place of the claimant's last injurious exposure. The claimant worked at the employer's Camp Bird Mine from January 1988 until November 1989. The ALJ found with record support that the claimant was exposed to silica rock dust on a daily basis during his employment at the Camp Bird Mine. Tr. 129-30. The claimant's testimony was corroborated by the testimony of George Rendon who described the dusty conditions in the mine and the miners' daily inhalation of silica rock dust. Tr. 108-09. Rendon worked as an underground miner with the claimant at several mines including the one operated by the employer. He also worked as a mine inspector for 20 years. The claimant has not worked as a miner since working at the Camp Bird Mine. Tr. 130-131.
Dr. James testified as an expert in internal medicine with a subspecialty board certification in pulmonary diseases. Tr. 25. Dr. James expressed the opinion that the claimant has silicosis as a result of exposure to hard rock dust from underground mining. Exhibit 15 at 199. Dr. James based his diagnosis on the claimant's mining history, dust sampling, a physical examination and diagnostic testing. Dr. Coburn also diagnosed the claimant as having silicosis from mining. Exhibit 3 at 17. Dr. Coburn based his diagnosis on the claimant's x-rays, work history and lung function tests. The record is replete with radiographic studies demonstrating that the claimant suffered from silicosis. The ALJ found that Dr. Repsher's determination that the claimant's lung condition resulted from tuberculosis was not persuasive because of the significant radiographic evidence to the contrary. Given this factual record, we perceive no reversible error in the ALJ's finding that the claimant was last injuriously exposed at the employer.
The requirement that the claimant sustain a "substantial permanent aggravation" of his condition was added to the last injurious exposure rule, now found at § 8-41-304(1). Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Monfort, Inc. v. Rangel, supra. In Monfort, the court of appeals determined that the addition of the phrase "substantial permanent aggravation" was intended to minimize the harsh effects of the last injurious exposure rule. Thus, liability for occupational diseases is limited to those employers who have caused a claimant to be exposed to a harmful concentration of a hazard, which exposure results in a substantial and permanent aggravation of the disease.
The ALJ determined that the employer here was liable because the claimant suffered a last injurious exposure that resulted in a permanent and substantial aggravation of his condition. Findings of Fact § 20 at 6. We conclude that the findings of fact are not sufficient to permit appellate review of this issue. Therefore, we remand the matter for additional findings concerning whether the exposure at the Camp Bird Mine resulted in a substantial and permanent aggravation of the claimant's silicosis.
The ALJ must make sufficient findings of fact to indicate the factual and legal basis of the order so as to support meaningful appellate review. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Purely conclusory findings are insufficient. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969); Haverty v. Sam's Wholesale Club W. C. No. 4-634-648, (December 19, 2005).
The ALJ found that an x-ray taken in 1986 established that the claimant had developed silicosis before he came to work at the Camp Bird Mine. Exhibit H Tr. 83. Finding § 17 21. However, the ALJ made no finding regarding the impact the exposure at the Camp Bird Mine had on the claimant's preexisting condition. We are unable to ascertain from the ALJ's order specifically what evidence he relied upon to find that the exposure at that mine caused a permanent and substantial aggravation of his condition. Since the findings are insufficient to support the ALJ's conclusion that the claimant suffered a permanent and substantial aggravation of his condition that portion of the order must be set aside and the matter remanded to the ALJ for additional findings and issuance of a new order concerning this issue.
III.
The respondents also contend that the ALJ misapplied the law set forth in § 8-41-304(1). The respondents argue that in addition to the elements of a last injurious exposure and a substantial permanent aggravation, because this case involves a claim of silicosis, the claimant must also establish that he was exposed to harmful quantities of silicon dioxide on each of at least sixty days or more. The respondents contend that the ALJ imposed liability without making any determination that the claimant was exposed to injurious levels of silica for at least 60 days while at the employer.
Section 8-41-304(1) provides that in the case of silicosis the only employer liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide dust on each of at least sixty days or more. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, the ALJ is not held to a standard of absolute clarity when issuing findings of fact and conclusions of law provided the basis of the order is apparent from the findings which are entered. When considering an order we may note findings which, although not expressly contained in the order, are necessarily implied by it. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
There is substantial evidence in the record to support a determination was last exposed to harmful quantities of silicon dioxide dust on each of at least sixty days or more at the Camp Bird Mine. As noted above the ALJ found with record support that the claimant had worked at the Camp Bird Mine for a period of months. The ALJ further found with record support that the claimant was exposed to silica rock dust on a daily basis during his employment at the Camp Bird Mine. The claimant and Rendon testified that the claimant was exposed to silica rock dust on a daily basis during his employment at the Camp Bird Mine. Tr. 129-130 108-109. Dr. James testified that the exposure at the Camp Bird Mine to silica dust was harmful. Tr. 102-103.
The respondents point to evidence that the mine was tested for respirable quartz on a day in 1989 and another day in 1988 and that the mine showed safe levels. Exhibit 14. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
IV.
The respondents also contend the ALJ erred in awarding medical benefits because there is not substantial evidence that the claimant is in need of treatment for silicosis. The ALJ ordered that the respondents are financially responsible for authorized medical treatment that is reasonable and necessary to cure and relieve the effects of the claimant's occupational disease. However, the ALJ did not order the respondents to pay for any specific treatment. We do note that Dr. Krebs recommended medical care consisting of aggressive medical treatment by a pulmonoligist. Exhibit 3 at 15.
In any event, we have held on many occasions that general awards of medical benefits are not final and reviewable unless the ALJ determines the respondents' liability for specific treatment. Thomas v. Four Corners Health Care, W.C. No. 4-484-220 (June 23, 2003); Tooley v. Johnson Sons Trucking, W.C. No. 4-376-713 (January 28, 2000); Evel v. Navajo Express, Inc. W. C. No. 4-531-922 (January 07, 2005). The rationale for these decisions is that even in cases where the ALJ determines general liability for medical treatment the respondents remain free to challenge the reasonableness and necessity for specific treatments which may later be recommended. See Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
Furthermore, an order may be partially final and reviewable, and partially interlocutory. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986); Aaron v. EGG G Inc., W. C. Nos. 4-468-193 4-162-124(October 16, 2003). Consequently, we conclude that this portion of the ALJ's order is interlocutory and not currently subject to review.
V.
Because we are remanding this matter for further findings concerning the liability of the employer, it is presently unnecessary for us to address the respondents' arguments that the ALJ erred in awarding TTD.
IT IS THEREFORE ORDERED that the respondents' petition to review is dismissed without prejudice insofar as it concerns the issue of the award of medical benefits.
IT FURTHER ORDERED that the ALJ's order dated August 24, 2007, 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
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
JAMES GURULE, KINGWOOD, TX (Claimant).
ROYALGOLD, INC., Attn: PAUL LIBNER, DENVER, CO (Employer).
OLD REPUBLIC INSURANCE COMPANY, Attn: BETSY SELLERS, GREENSBURG, PA (Insurer).
WITHERS, SEIDMAN, RICE MUELLER, P.C., Attn: CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: CHERYL A. MARTIN, ESQ., GRAND JUNCTION, CO (For Respondents).
MCMILLAN CLAIMS CORPORATION, Attn: DAVID HAMILTON, GRAND JUNCTION, CO (Other Party).