Opinion
W.C. Nos. 4-269-444, 4-370-842
January 6, 1999
FINAL ORDER
Todd Holdings d/b/a Toddy's (Toddy's) and its insurer, TIG Fairmont Insurance Company (collectively the TIG respondents), seek review of an order of Administrative Law Judge Gandy (ALJ), which required them to pay the workers' compensation benefits awarded on account of the claimant's carpal tunnel syndrome (CTS). We affirm.
It is undisputed the claimant suffered an accidental injury to her right shoulder and neck on December 28, 1994, while employed as a full-time receiving clerk at Toddy's. At the time of the injury Toddy's was insured by the TIG Fairmont Insurance Company. Effective March 13, 1997, American Protection Insurance Company (American Protection) became Toddy's insurer. Through March 1995, the claimant was concurrently employed as a part-time stocker for Frito Lay, Inc. (Frito Lay).
The claimant subsequently developed an occupational disease diagnosed as cervical spondylolisthesis from the concurrent employment. In January 1996, the claimant left work and underwent a cervical fusion by Dr. Hitchcock. The claimant returned to modified employment at Toddy's in May 1996. The claimant's condition subsequently worsened. On September 24, 1997, the claimant underwent carpal tunnel surgery by Dr. Hitchcock.
The parties stipulated that the claimant sustained an occupational disease diagnosed as CTS. However, the parties disagreed on which insurer is responsible for the CTS.
Section 8-41-304(1), C.R.S. 1998, provides that:
"Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier." (Emphasis added).
The ALJ determined that the claimant developed CTS as a result of continuous lifting and reaching during her concurrent employment with Toddy's and Frito Lays. (Conclusions of Law). The ALJ also found that the claimant experienced the onset of disability from the CTS in May 1996, when she returned to work with medical restrictions for her neck, shoulders and arms, and that the "light" duty employment the claimant subsequently performed, did not result in a substantial, permanent aggravation of the CTS. Under these circumstances, the ALJ determined that the TIG respondents are solely responsible for the CTS.
I.
On review, the TIG respondents contend the ALJ erred in finding that the claimant experienced the onset of disability in May 1996. They argue the claimant did not experience the onset of disability until September 24, 1997, when she left work and underwent a carpal tunnel release. In support, the TIG respondents assert that the claimant was not diagnosed with CTS until 1997, and that the record does not support Finding of Fact 19 where the ALJ determined that Dr. McCranie medically restricted the claimant's upper extremity activities upon her "return to work at Toddy's." We disagree.
As argued by the TIG respondents, the claimant does not suffer a compensable occupational disease until the claimant experiences the "onset of disability." Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995) ; Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994). The "onset of disability" occurs when the disease physically incapacitates the claimant from regular work. Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998). Incapacity may be evidenced by various factors including lost time from work, 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).
The determination of when the CTS medically restricted the claimant from performing her regular employment was a question of fact for resolution by the ALJ. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In so doing, we must view the evidence in the light most favorable to the prevailing party. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Furthermore, where the evidence is susceptible of conflicting inferences we must defer to the ALJ's resolution of the conflicts and plausible inferences drawn from the record. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The 1995 medical reports of Dr. Carson, Dr. Coester and Dr. Hitchcock note symptoms consistent with the diagnosis of CTS. Further, Dr. McCranie admitted that when the claimant began treating in September 1995, she demonstrated some symptoms consistent with CTS. (McCranie depo. p. 5). Therefore, the record contains substantial evidence to support the ALJ's implicit determination that the claimant was experiencing symptoms of CTS by May 1996.
Moreover, it is undisputed that the claimant was medically restricted from returning to her regular employment in May 1996, and that Toddy's accommodated the claimant's restrictions. Dr. McCranie testified that as of May 8, 1996, she imposed medical restrictions limiting the claimant's "scanning activities," and overhead reaching. (McCranie depo. p. 11). It is reasonable to infer that the "scanning activities" involved use of the hands, wrists and arms. Dr. McCranie's August 16, 1996, report indicates that the claimant continued to work with restrictions. That report also outlines the claimant's "upper extremity" tolerances, including limited "power grasping" as confirmed in her deposition testimony. (McCranie depo. p. 15, ll. 8-15).
Dr. McCranie gave conflicting testimony concerning whether the restrictions were imposed for the CTS. She stated that the restrictions were imposed "solely" for the 1994 shoulder and neck injuries. (McCranie depo. p. 11, ll.20-22). However, she also stated that the medical restrictions "apply to her body as a whole" and the claimant "was most restricted specifically applied [sic] to her neck, shoulder, and arms as a whole." (McCranie depo. p. 15, ll. 24-25; p. 16 ll. 1-2).
The claimant stated that when she was released to return to modified work following the cervical surgery, she was under permanent medical restrictions, some of which she believed were directed to relieve her ongoing arm and wrist problems. (Tr. pp. 53, 55, 56). Consequently, the record contains substantial evidence, from which the ALJ could, and did, infer that at least part of the claimant's May 1996 medical restrictions were due to the CTS. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983) (claimant's testimony was substantial evidence concerning the cause of a disability). Moreover, this determination supports the ALJ's finding that the claimant experienced the onset of disability in May 1996. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
In reaching this conclusion we recognize the evidence that the claimant had negative EMG studies prior to September 1997. However, Dr. Hitchcock stated that negative EMG studies are not dispositive of the absence of CTS. In fact, Dr. Hitchcock stated that a patient may have CTS which is never confirmed by EMG results. (Hitchcock depo. p. 18). Further, Dr. Hitchcock testified that he diagnosed CTS after his first examination of the claimant in December 1995. (Tr. pp. 19-20, 34). Therefore, we are not persuaded the record compels a finding that the claimant was not diagnosed with CTS until 1997.
II.
Next, the TIG respondents contend that the ALJ's finding that the claimant experienced the onset of disability in May 1996 is inconsistent with the finding that the claimant did not suffer an injurious exposure after May 1, 1996. In support, they point out that the claimant did not work at Toddy's between January 26, 1996 and May 1, 1996, and the claimant only performed "light" duties after May 1, 1996. We disagree.
The ALJ is not held to a crystalline standard in the articulation of his findings of fact. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). As we read the ALJ's order, he found that the claimant developed CTS from the heavy work required of her concurrent employment prior to January 1996. Because the claimant was not employed at Frito-Lay between March 1995 and January 1996, the ALJ has implicitly determined that the claimant was last injuriously exposed and suffered a substantial permanent aggravation while working at Toddy's.
The ALJ also recognized that the onset of symptoms is not necessarily the date of the onset of disability from an occupational disease. See (Conclusions of Law) ; Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991) ; Mendisco v. Urralbura Mining Co. v. Johnson, 687 P.2d 492 (Colo.App. 1984). Accordingly, the ALJ's determination that the CTS existed prior to May 1996 is not inconsistent with his finding that the onset of disability occurred in May 1996. Furthermore, evidence the claimant's work after May 1996 did not substantially aggravate the claimant's CTS is not inconsistent with his finding that the onset of disability occurred in May 1996 when the disease resulted in permanent medical restrictions.
III.
In his deposition, Dr. Hitchcock stated that all of the treatment he provided the claimant has been due to the December 1994 industrial injury. (Tr. p 14). Because Dr. Hitchcock performed the September 1997 CTS release, we perceive no error in Finding of Fact 23 where the ALJ determined that Dr. Hitchcock related the claimant's CTS to the 1994 injury.
The TIG respondents' arguments notwithstanding, there is also substantial evidence in Dr. Hitchcock's testimony to support Finding of Fact 25 where the ALJ determined that Dr. Hitchcock attributed the claimant's need for carpal tunnel surgery to a natural progression of the disease and not a substantial, permanent aggravation of the disease after American Protection became the insurer on the risk. On November 11, 1997, Dr. Hitchcock opined that the worsening of the claimant's condition was not due to her continued employment at Toddy's. In fact, he opined that the worsening of the claimant's condition was a natural progression of the disease, and he was unaware of any specific "events or activities" which caused the worsening." (Hitchcock depo. pp. 23, 49).
The TIG respondents contend that Dr. Hitchcock's testimony is incredible as a matter of law. However, Dr. Hitchcock's testimony is part of a highly conflicting medical record. Furthermore, insofar as Dr. Hitchcock's testimony contains internal inconsistencies, it was the ALJ's sole province to resolve the conflicts. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Under these circumstances, we cannot say that as a matter of law, the ALJ erred in crediting Dr. Hitchcock's testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
IV.
We also reject the argument the ALJ erred in finding that the claimant did not suffer an injurious exposure to the hazards of the disease after March 13, 1997, when American Protection became the insurer on the risk. The claimant stated that there is "really no comparison" between the job duties she performed before and after May 1996. (Tr. p. 57). She stated that since May 1996, she has been performing "very light" work. (Tr. pp. 54, 55). Therefore, we may not interfere with the ALJ's resolution of the liability issue.
The TIG respondents' remaining arguments have been considered and are unpersuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated April 13, 1998, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed January 6, 1999 to the following parties:
Sherry Murphy, 3029 Ross Drive, #Y1, Fort Collins, CO 80526
Toddy's of Fort Collins, Inc., 2601 South Lemay Avenue, Fort Collins, CO 80525-2247
Frito-Lay, Inc., 7701 Legacy Drive, Plano, TX 75024-4002
TIG Fairmont Insurance Co., Attn: Nancy Rostad, P.O. Box 17005, Denver, CO 80217-0005
American Manufacturers Insurance Co., Kemper Insurance Companies, Attn: Sandra O'Brien, P.O. Box 5347, Denver, CO 80217-5347
American Protection Insurance, Co., Kemper Insurance Companies, Attn: Dawn Kaup, P.O. Box 5347, Denver, CO 80217-5347
Karen Burns, Esq., 745 Walnut Street, Boulder, CO 80302-5032 (For Claimant)
Clyde E. Hook, Esq., Harvey D. Flewelling, Esq., 5353 West Dartmouth, #400, Denver, CO 80227 (For Respondents — TIG Fairmont Insurance Co.)
Karen Wells, Esq., 3900 East Mexico Avenue, Suite 1000, Denver, CO 80210 (For Respondents — Frito-Lay American Manufacturers Insurance Co.)
J. Barton Maxwell, Esq., 1225 17th Street, Suite 2800, Denver, CO 80202-5528 (For Respondents-American Protection Insurance)
BY: ___________