Opinion
W.C. No. 4-283-187
March 17, 1997
ORDER OF REMAND
The claimant and the respondents separately petition for review of an order of Administrative Law Judge Martinez (ALJ), insofar as the ALJ determined that the claimant is permanently and totally disabled and awarded benefits. The claimant contends that the ALJ erred in requiring the respondents to only pay 70 percent of his permanent total disability benefits. The respondents contend that the ALJ erred in denying their motion to join the Subsequent Injury Fund (SIF). We set aside the contested portion of the order, and remand for the entry of a new order.
The ALJ found that the claimant became permanently and totally disabled on February 26, 1995, from the combined effects of occupational and a non-occupational lung diseases. Specifically, the ALJ found that the claimant has a chronic obstructive pulmonary disease (COPD) caused by cigarette smoking. The ALJ also found that the claimant sustained an occupational disease diagnosed as "mild silicosis" and "moderately severe pulmonary fibrosis" as a result of his work as an underground uranium miner. The ALJ found that the claimant was last injuriously exposed to the hazards of the disease while employed for the respondent-employer. Further, the ALJ found that the "onset of disability" was February 25, 1995, the date the claimant became totally disabled.
Relying upon Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), and the opinions of Dr. Bechtel, the ALJ apportioned 70 percent of the claimant's permanent total disability to the occupational disease and 30 percent to the COPD. Therefore, the ALJ held the respondents liable for 70 percent of the claimant's permanent total disability benefits.
I.
The respondents contend that the ALJ erred in failing to impose liability on the SIF under former § 8-41-304(2), C.R.S. (1992 Cum. Supp.), which provides in pertinent part, that, if the claimant is "disabled from silicosis" or a "disease caused by exposure to radioactive materials," the employer in whose employment the claimant was last injuriously exposed to the hazards of the disease shall be liable for compensation up to ten thousand dollars and all further compensation shall be paid by the SIF.
The respondents recognize that § 8-41-304(2) was subsequently amended to preclude SIF liability for occupational diseases occurring on or after April 1, 1994. See 1993 Colo. Sess. Laws, ch. 351 at 2140. However, the respondents contend, inter alia that, the ALJ misapplied the law in finding that the claimant's occupational disease arose after April 1, 1994. We conclude that the ALJ's findings are insufficient to permit appellate review of the respondents' argument, and therefore, we must remand the matter for additional findings of fact. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990) (ALJ's findings must be sufficient for court to determine the basis for the ALJ's decision).
As argued by the respondents, the law in effect on the date of the claimant's "onset of disability" governs the rights and liabilities of the parties in occupational disease claims. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). The "onset of disability" occurs when the injury physically incapacitates the claimant so that he cannot perform his work with the usual efficiency. See Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Incapacity may be evidence by lost time from work. However, it may also be evidenced by reduced efficiency in the performance of regular duties, or medical restrictions affecting the claimant's ability to perform his regular duties. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986).
Admittedly, the claimant testified that he did not "stop working altogether" until February 25, 1995 (Tr. p. 43). However, he also stated that his first lost time from work as a result of his lung condition was June 30, 1994, when he was hospitalized. (Tr. p. 42). Thus, the record contains some evidence, which if credited, might support a finding that, the onset of disability occurred prior to February 25, 1995.
More importantly, there is some evidence from which it could be inferred that the onset of disability occurred prior to April 1, 1994. Dr. Bechtel testified that in 1992, and again during the claimant's 1994 hospitalization, he "suggested [the claimant] stop working based upon his pulmonary function testing and oxygenation." (Tr. p. 11). Dr. Bechtel also stated that he considered the claimant's lung condition to be "disabling" in 1992. (Tr. p. 8). However, he added that the claimant was "bound and determined that he was not going to stop working at that time," which Dr. Bechtel attributed partly to the claimant's work ethic and partly to the claimant's need for money. (Tr. p. 11). This testimony, if credited, might support an inference that as of 1992, the claimant's lung condition medically restricted him from performing his regular duties, despite his insistence on continuing to work.
The ALJ did not indicate what evidence he relied upon to find that the claimant's "onset of disability" occurred on February 25, 1995. Under these circumstances, we are unable to ascertain whether the ALJ properly applied the "onset of disability" rule.
On remand, the ALJ shall redetermine the date of the claimant's onset of disability, and issue specific findings of fact which articulate the evidence he relied upon in making his determination. Based upon that determination, the ALJ shall also enter a new order concerning the respondents' request for an order imposing liability on the SIF in accordance with § 8-41-304(2).
As a result of our remand, we do not consider the respondents' remaining argument concerning the "onset of disability."
II.
The claimant contends that the ALJ erroneously relied upon Anderson v. Brinkhoff, supra, to apportion his permanent total disability benefits. The claimant argues that the respondents are liable for one hundred percent of his permanent total disability under the "full responsibility rule." We agree with the claimant that the ALJ erred in relying upon Anderson v. Brinkhoff, supra, and remand the matter for a new order on the issue of apportionment.
Anderson v. Brinkhoff, supra, governs the compensability of occupational disease claims where there is more than one cause of the disease. In Anderson the Supreme Court held that where an occupational exposure is not a precondition to the development of a disease, the claimant suffers an occupational disease only to the extent that the occupational exposure caused, intensified or aggravated the disability for which compensation is sought. Accordingly, Anderson is not applicable where the claimant has two separate and distinct diseases, one of which was solely the result of an occupational exposure and one of which was solely caused by a non-occupational exposure.
Here, the ALJ found that the claimant sustained two, separate and distinct diseases. He found that the occupational disease was solely caused by the occupational exposure, and that the non-occupational disease was solely caused by hazardous exposures outside of the claimant's employment. Furthermore, unlike the facts in Anderson, the ALJ's findings reflect his determination that the claimant's occupational exposure during his work as a uranium miner was a necessary precondition to the development of the occupational disease. Under these circumstances, the ALJ erred in relying upon Anderson v. Brinkhoff, supra, to apportion liability for the claimant's permanent total disability benefits.
However, we reject the claimant's argument that, as a matter of law, his permanent total disability is not subject to apportionment. Section 8-42-104(2), C.R.S. (1996 Cum. Supp.) provides that:
"In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury."
As the claimant recognizes, we previously held that § 8-42-104(2) does not allow the apportionment of permanent total disability between a preexisting non-industrial disability, and an industrial disability. See Austill v. Colorado Mental Health Institute, W.C. No. 4-207-213, April 15, 1996; Tebeest v. Baldwin Construction, Inc., W.C. No. 3-106-740, July 17, 1996. Our conclusion was based upon Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), in which the Court of Appeals held that § 8-42-104 applied to the apportionment of multiple "industrial" disabilities.
However, as stated in Baldwin Construction Inc., v. Industrial Claims Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1362, March 6, 1997), the Supreme Court implicitly overruled Lindner in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In Askew the court held that for purposes of apportioning permanent partial disability under § 8-42-104(2), it is irrelevant whether the "previous disability" is occupational or non-occupational. In Askew court also held that a "disability" is "an alteration of an individual's capacity to meet personal, social or occupational demands." The court also concluded that apportionment of a prior impairment is only appropriate if the prior impairment has been sufficiently identified, treated, or evaluated to be rated as a contributing fact in the subsequent disability.
The claimant in Askew sustained an industrial injury to his back. The claimant also had a preexisting back condition. However, the preexisting condition was dormant, did not require treatment and did not "hinder" the claimant's work prior to the industrial injury. Therefore, the Supreme Court concluded that the claimant's non-industrial condition was not a "previous disability" for purposes of applying § 8-42-104(2).
Under § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), which governs this claim, permanent total disability is the inability to earn any wages. Therefore, in Baldwin Construction Inc., v. Industrial Claims Appeals Office, supra, the Court of Appeals concluded that preexisting, non-industrial medical conditions which do not independently cause a significant loss of access to the labor market or render the claimant unemployable prior to the industrial injury, do not rise to the level of a "previous disability" for purposes of apportioning permanent total disability benefits.
As a result of the ALJ's erroneous reliance upon Anderson v. Brinkhoff, supra, he did not make any factual determination concerning whether the claimant's non-occupational disease rose to the level of a "previous disability" for purposes of triggering the apportionment provisions of § 8-42-104(2). Furthermore, the ALJ did not have the benefit of either Askew or Baldwin at the time of his order. Under these circumstances, we are unable to ascertain how the ALJ would have resolved the apportionment issue had he considered the applicable legal standard, Therefore, we remand the matter for a new order on the issue of apportionment.
IT IS THEREFORE ORDERED that the ALJ's order dated September 17, 1996, is set aside insofar as the ALJ ordered the respondents to pay seventy percent of the claimant's permanent total disability benefits, and denied a motion to join the SIF.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ for entry of a new order which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed March 17, 1997 to the following parties:
Leroy Higgs, 712 Nu Vue St., Apt. 1, Delta, CO 81416
Union Carbide Corporation, 39 Old Ridgebury Road, Danbury, CT 06817-0001
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Subsequent Injury Fund — Interagency Mail
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the CCIA-Respondents)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Andrew M. Katarikawe, Esq., Attorney General's Office, Civil Litigation Section, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
BY: _______________________________