Opinion
W.C. Nos. 4-538-972 4-698-452.
April 3, 2008.
ORDER
The respondents Molson Coors Brewing Co. and its insurer Zurich American (hereinafter Molson Coors) seek review of a supplemental order of Administrative Law Judge Jones (ALJ) dated November 20, 2007, that determined the claimant had suffered an occupational disease to his low back under W.C. No. 4-698-452. We affirm in part, set the order aside in part, and remand for entry of a new order on the issue of medical benefits.
We note preliminarily that during the course of the claimant's employment with Coors Brewing Co., the employer changed its name to Molson Coors Brewing Co. The claimant injured his low back on March 14, 2000, as the result of a specific accidental event which is the subject of the claim in W.C. No. 4-538-972. The respondents on that claim were Coors Brewing Company and its insurer at the time American Casualty Company. In her order the ALJ denied the claimant's petition to reopen W.C. No. 4-538-972 and neither the claimant nor Molson Coors disputes the order denying the petition to reopen W.C. No. 4-538-972.
The pertinent findings of fact by the ALJ are as follows. The claimant began his employment with Coors as a truck driver in 1973. The claimant first injured his low back in 1982 as the result of a specific, accidental event when he was hooking up lines on the trailer and felt an onset of low back pain. The claimant underwent surgery then returned to work. The claimant again injured his low back on March 14, 2000, as the result of a specific accidental event when he was going up the steps of his truck and felt the onset of low back pain. The claimant underwent a second surgery and did well for a number of years, but then started to experience some low back aching in 2005. The claimant experienced two separate work-related lumbar spine injuries and each led to surgical treatment. In both cases, the claimant reached a point of full functional recovery and in each instance, the claimant returned to work. Dr. Hughes credibly testified concerning the cause of the claimant's low back symptoms. Dr. Hughes opined that the pain generator is from the L5-S1 level, and represented a natural progression of the claimant's initial work-related injury of February 1, 1982, but the degenerative process was likely to have been measurably accelerated by prolonged seated position of six to seven hours a day in the course of truck driving for Coors and Molson Coors. Dr. Hughes opined that the claimant's continued work at Molson Coors constituted an aggravation of the claimant's low back condition.
The ALJ found that the claimant sustained a compensable occupation disease in connection with his employment at Molson Coors. The ALJ found that the evidence established that the claimant's condition while in the employ of Coors Molson was caused, aggravated, or accelerated by the duties the claimant performed. The ALJ determined that Molson Coors was liable for medical treatment for the claimant's low back.
I.
Molson Coors contends that the ALJ's determination that a compensable occupational disease occurred during the claimant's employment with Molson Coors is not in accordance with the applicable law and is unsupported by the findings of fact. Molson Coors argues that the pain the claimant sought medical treatment for was generated from the same level in the claimant's spine that was injured in the 1982 specific work-related accident. Therefore, Molson Coors contends that there is no separate compensable occupational disease injury and rather the claimant's condition is the natural and proximate result of the 1982 accident.
A claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. 2007. The claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant's employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Once the claimant establishes a causal connection between the employment and his disability, the burden shifts to the respondent to prove a non-work related cause of the disease. Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
Because the issue of causation is factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. This standard of review requires deference to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the ALJ found with record support that while Molson Coors employed the claimant, the conditions of his employment caused, aggravated and/or accelerated the claimant's injuries and his need for treatment. Supplemental Order (Order) at 5 (unpaginated), ¶ 19. As argued by Molson Coors the ALJ did note the testimony of Dr. Hughes that the probable pain generator is from the L5-S1 level and represents a natural progression of the claimant's initial work-related injury of 1982. Order at 4 (unpaginated), ¶ 14. However, the ALJ also found that degenerative process described by Dr. Hughes was measurably accelerated by the prolonged seated position of six to seven hours a day in the course of truck driving for Coors and Molson Coors. Order at 4 (unpaginated), ¶ 14; Exhibit 8 at 6. The ALJ further noted that Dr. Hughes opined that the claimant's continued work at Molson Coors constituted an aggravation of the claimant's low back condition. Order at 4 (unpaginated), ¶ 15; Tr. at 66-67. Dr. Hughes explained that the claimant had preexisting pathology at the L5-S1 disc caused by a prior injury, but that as a result of his recent job activities he sustained a substantial and permanent aggravation of this preexisting spine pathology. Dr. Hughes, although acknowledging that occupational disease is a legal term more than a medical term, understood the claimant to have an occupational disease. Tr. at 72.
As we read the ALJ's order, here, as in University Park Care Ctr. v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001), the ALJ found that the original 1982 and 2000 injuries were separate and distinct from the development of an occupational disease related to the claimant's continuing back problems caused by the claimant's continued work at Molson Coors. As noted above, the issue of causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
We are not persuaded by Molson Coors' argument based on Price Mine Serv., Inc. v. Industrial Claim Appeals Office, 64 P.3d 936 (Colo.App. 2003). We do not question the general proposition that injuries that are naturally and proximately caused by an industrial injury do not give rise to new claims in contrast to separate intervening causes, which do give rise to new claims. However, Price Mine Serv., Inc. involved a quasi-course of employment injury and the court noted that under the quasi-course of employment doctrine, the second injury is not considered an intervening event that would otherwise relieve the employer from further liability. Price Mine Serv., Inc. did not involve the issue of a claimed occupational disease claim following specific accidental injuries and is not particularly instructive on the present issue. We do not read Price Mine Serv., Inc., as authority that an occupational disease claim may not follow an earlier specific work-related accidental injury to the same area of the claimant's body.
Molson Coors further contends that the ALJ's factual findings do not support a determination that the claimant sustained an occupational disease under the standards set for in § 8-40-201(14), C.R.S. 2007. We disagree. An occupational disease is defined as follows:
[A] disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.
Section 8-40-201(14). We note that in her order the ALJ correctly set forth the definition of an occupational disease. Conclusion of Law § 4 at 6. In addition, the ALJ found that the claimant was not equally exposed to hazards outside of work similar to those to which the claimant was exposed to at work. The ALJ found that the claimant's work-related duties aggravated his condition and accelerated his need for treatment to his low back. The ALJ further found that while Molson Coors employed the claimant, the conditions of his employment caused, aggravated and/or accelerated the claimant's injuries and his need for treatment. Order at 5 (unpaginated), ¶ 19. In our opinion, the ALJ's findings, as noted above, are supported by substantial evidence in the record and the findings support the conclusion that the claimant suffered an occupational disease.
II.
Molson Coors contends that the ALJ's findings and conclusion of an "aggravation" from the claimant's employment at Molson Coors does not support the finding of a separate, compensable occupational disease. Molson Coors argues that to be compensable the occupational disease must represent a new injury that constitutes an intervening event "which bears no physical or medical connection to the prior accidental injury." We are not persuaded.
In University Park Care Ctr., the claimant suffered back and leg pain from a 1991 injury and in 1999 experienced a significant increase in her pain, which the ALJ determined resulted from subsequent aggravation of her previous condition by the claimant's later work. The court of appeals determined that the ALJ necessarily found that the original injury in 1991 was a separate and distinct event from the development of an occupational disease related to the claimant's continuing back problems. In University Park Care Ctr., it was clear that the later occupational disease did bear a physical or medical connection to the prior injury. The court noted the medical evidence in the record linked the deterioration of the claimant's condition to both the 1991 and her subsequent injury due to normal work activities and approved of apportionment of liability between the employers and their respective insurance carriers. The issue of apportionment was not raised in the current case. In Bennett v. Asplundh Tree Expert Company, W. C. Nos. 4-532-142, 4-532-158, 4-537-028 (February 12, 2004), it was determined that the claimant sustained compensable accidental injuries to his shoulder and later an occupational disease as a result of employment that aggravated or accelerated the need for treatment of preexisting shoulder conditions. In Bennett, it was noted that the ALJ was simply required to determine whether the employment aggravated or accelerated the need for treatment in accordance with the ordinary rules governing causation. In our opinion that is what the ALJ correctly did in the instant case.
III.
Molson Coors contends that the ALJ erred as a matter of law in determining that Molson Coors had liability for the claimant's medical treatment after February 2, 2007. Molson Coors argues the claimant left its employment on January 20, 2007, and began new but similar employment with Arlo Transportation on February 2, 2007. Molson Coors argues that the claimant's job duties with Arlo Transportation represent an injurious exposure, which would cause, accelerate or aggravate the need for medical treatment. In response the claimant contends that the last injurious exposure and substantial permanent aggravation tests do not apply to an award of medical benefits and that the claimant has not suffered an onset of disability for purposes of receiving compensation benefits. The claimant further argues that the issue of the liability of Arlo Transportation for medical benefits after February 1, 2007, is an affirmative defense, which was not listed as an issue for hearing, and the claimant did not consent to the trying of the issue by the ALJ.
The "last injurious exposure" rule does not govern the assignment of liability for medical benefits necessitated by an occupational disease. The cost of those benefits is, instead, placed upon the carrier "on the risk" at the time such expenses are incurred. Royal Globe Insurance Co. v. Collins, 723 P.2d 731, 733 (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 Ctr. v. Industrial Claim Appeals Office, supra.
Here, the ALJ held Molson Coors liable for medical treatment for the claimant's low back injury, the medical treatment provided by Dr. Smaldone on November 16, 2006 and the treatment subsequent to that date provided by Dr. Castro and Dr. Hemler. The ALJ made the following findings of fact. The claimant retired from Molson Coors on January 28, 2007, and began a new job with Arlo Transportation on February 1, 2007. The claimant's job duties with Arlo Transportation were essentially the same as his duties for Coors and Molson Coors, exposing the claimant to the same types of physical work, including vibration when driving equipment, which the claimant felt was rough riding. The claimant continued to work and perform this job as of the time of the hearing. Order at 2 (unpaginated), ¶ 4.
We have previously held that the question of whether an insurer was "on the risk" is to be determined under the usual rules governing liability for workers' compensation benefits. See Rigdon v. Doubletree Hotels, W.C. Nos. 4-175-649, 4-211-377 (March 18, 1996); Martinez v. Storage Technology Corp., W.C. No. 4-175-875 (August 31, 1995). Accordingly, we have concluded that to impose liability for medical benefits on a particular employer or insurer, the evidence must establish a causal connection between the need for medical benefits and the employment. Summerhill v. Safetran Traffic Systems, Inc., W. C. No. 4-175-170 (July 2, 1998).
Here, Dr. Hughes testified that the claimant's continued work performance at Arlo Transportation would aggravate and continue to accelerate his need for medical treatment for his low back. Tr. 82-83. Further, the ALJ expressly credited the opinions of Dr. Hughes. Order at 4 (unpaginated), ¶ 17. The respondents raised the issue of the liability of Arlo Transportation. See Respondents' Position Statement (filed prior to entry of the ALJ's order).
Because under Royal Globe Insurance Co., an employer and its insurer may be able to shift liability to other employers and insurers, who were "on the risk" at the time medical expenses are incurred, this is 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). Since Royal Globe Insurance Co. creates an affirmative defense, the defense is waived unless specifically pled. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977); Rios v. Crowley County Nursing Center, W. C. No. 4-164-997 (September 10, 1998).
The ALJ failed to address in her order the respondent's contention that the claimant was exposed to the same occupational exposures at Arlo Transportation as he was at Molson Coors and that therefore the liability for further medical treatment would be the responsibility of Arlo Transportation and its insurer. However, as noted by the claimant, the parties at the beginning of the hearing did not identify the issue of the claimant's employment at Arlo Transportation. Tr. at 13.
Here, the respondents' Response to Application for Hearing does not specifically mention the defense or indicate the respondents' intent to shift liability to other employers and insurers. The response does list "intervening event, new injury" and "causation of current problems." In addition the respondents did raise the issue of the liability of Arlo Transportation in a position statement filed after the hearing, but before an order was issued.
Some questions of Dr. Hughes, as well as the testimony of the claimant, concerned a possible "aggravation" of the claimant's condition while working for a subsequent employer. Tr. at 48, 83. These questions appear to have alerted counsel for the claimant that the respondents intended to raise the defense because he objected to a line of questions directed to Dr. Hughes on the issue of the exposure of the claimant at Arlo Transportation. Tr. at 83-84. Counsel for the claimant argued that the respondents had not raised this issue, but the ALJ overruled the objection. Tr. at 84. It may be that the ALJ determined that the issue was properly raised. In any event, we cannot say as a matter of law that this issue was not properly raised before the ALJ, and was therefore waived by Molson Coors. Therefore, we must remand the matter to the ALJ to make a determination on the issue of whether the issue was properly raised and whether Molson Coors had, by its actions, waived the issue.
In addition, because the issue of causation is factual in nature it is not for us to say whether the claimant experienced a subsequent aggravation of his condition while working for Arlo Transportation. Consequently, it is for the ALJ to decide whether to assign liability for medical benefits necessitated by the claimant's occupational disease to Molson Coors or relieve them of that responsibility because the conditions of employment at a subsequent employer caused the need for treatment.
On remand, the ALJ shall make findings and enter a new order, which determines whether Molson Coors waived the defense of shifting liability to another employer who was "on the risk" at the time medical expenses were incurred. If the ALJ determines that the issue was properly raised then she shall issue a new order in accordance with the foregoing views and determine who the employer "on the risk" was, when medical expenses were incurred by determining which employer's conditions of employment caused the need for treatment. IT IS THEREFORE ORDERED that the ALJ's order dated November 20, 2007, is set aside insofar as did not address the liability for medical treatment in light of the claimant's alleged occupational exposure at Arlo Transportation and the matter is remanded for entry of a new order on this issue consistent with the views expressed herein.
IT IS FURTHER ORDERED that the order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
JERRY KRUSE, ARVADA, CO, (Claimant).
COORS BREWING CO MOLSON COORS BREWING CO, Attn: TINA GIBSON/RICK HINDMAN, ESQ., C/O: COORS RISK MGMT DEPT, GOLDEN, CO, (Employer).
AMERICAN CASUALTY CO ZURICH AMERICAN, Attn: KYLE L THACKER, ESQ., C/O: RITSEMA LYON, PC, DENVER, CO, (Insurer).
THE ELLIOTT LAW OFFICES, Attn: MARK D ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
WHITE STEELE, PC, Attn: TED KRUMREICH, ESQ., DENVER, CO, (For Respondents).
ZURICH AMERICAN, Attn: TRUDY SPRATTA, C/O: BROADSPIRE, GOLDEN, CO, (Other Party).
AMERICAN CASUALTY CO OF READING PA, Attn: MARY KOCH, C/O: CNA, DENVER, CO, (Other Party 2).