Opinion
W.C. Nos. 4-290-694, 4-271-479
August 13, 1997
FINAL ORDER
This matter has been transmitted to us for review of an order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant sustained an occupational disease and awarded benefits. Elsinore L.P. (Elsinore) and its insurer, Employers Insurance of Wausau (collectively "the respondents"), contend that the ALJ erroneously held them liable for the occupational disease. The claimant contests the ALJ's calculation of temporary partial disability benefits. We affirm.
The claimant worked as an airport agent for American Airlines until her retirement on May 26, 1995. The claimant was employed in a similar capacity for Elsinore between July 10 and September 15, 1995. The parties stipulated that the claimant's average weekly wage with Elsinore was $480.22.
The ALJ found that the claimant sustained an occupational disease to her upper extremities from the repetitive activities of her job with Elsinore. Consequently, the ALJ determined that the respondents are liable for the disease. The ALJ also ordered the respondents to pay medical benefits and temporary partial disability benefits commencing October 18, 1995.
I.
On review, the respondents acknowledge that an occupational disease is not compensable until the "onset of disability." See SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). The respondents also concede that "onset of disability" is not the date the occupational disease become symptomatic but rather, the date when the disease precludes the claimant from performing her regular employment as evidenced by lost time from work, reduced efficiency, or medical restrictions. 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).
However, the respondents contend that the claimant sustained the onset of disability prior to the time she began working for Elsinore. Therefore, the respondents argue that the ALJ erred in imposing liability on them for the claimant's workers' compensation benefits. We disagree.
The date of the claimant's onset of disability is a question of fact for resolution by the ALJ. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidences. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Furthermore, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and assessment of the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Here, the ALJ recognized that the claimant was symptomatic from the occupational disease in 1994, but found that the symptoms did not interfere with the claimant's ability to perform her job until September 1995. The ALJ also found that the occupational disease did not result in reduced efficiency or lost time from work until the claimant worked for Elsinore. See Discussions and Conclusions of Law.
There is substantial evidence in the testimony of the claimant and Dr. Elgin to support the ALJ's findings. Consequently, it is immaterial that the record contains some evidence which if credited, might support the respondents' theory of liability.
Moreover, § 8-41-304(1), C.R.S. (1996 Cum. Supp.), provides that where compensation is payable for an occupational disease, the employer in whose employment the employee is last injuriously exposed to the hazards of the disease and suffered a substantial permanent aggravation of the disease, is alone liable for the disease. The ALJ expressly found that even if the claimant's onset of disability occurred prior to her employment for Elsinore, the claimant suffered a substantial, permanent aggravation of her condition as a result of her work for Elsinore.
The respondents' arguments notwithstanding, there is substantial evidence in the record to support the ALJ's finding. The claimant testified that although her duties at Elsinore were similar to her work for American Airlines, the pace at Elsinore was "hectic" and her symptoms were intensified by the chaos and tension at Elsinore. (Tr. pp. 30, 31). Further, Dr. Elgin opined that the claimant's work at Elsinore aggravated her condition, and testified that the claimant's upper extremity problems which he treated in May 1995 had worsened by October 1995. (Tr. pp. 57, 59, 61).
The ALJ's determination is also supported by the opinions of Dr. Polanco, which the ALJ expressly found credible. In his independent medical examination report dated September 12, 1996, Dr. Polanco opined that the claimant suffered a "significant and permanent aggravation of her condition" due to her work for Elsinore. Consequently, the ALJ did not err in ordering the respondents to pay the workers' compensation benefits due in connection with the claimant's occupational disease. Section 8-41-304(1); Monfort Inc. v. Rangel, supra.
II.
The claimant contends that the ALJ erred as a matter of fact and law in the calculation of her temporary partial disability benefits. We disagree.
Section 8-42-106, C.R.S. (1995 Cum. Supp.) [modified in 1996], provides that where a claimant's temporary disability is less than total, the claimant is entitled to temporary partial disability benefits equal to:
"sixty-six and two thirds percent of the difference between said employee's average weekly wage at the time of the injury and said employee's average weekly wage during the continuance of the temporary partial disability. . . ."
The ALJ found that the occupational disease disabled the claimant from performing the duties of her regular employment commencing October 18, 1995. However, based upon the claimant's testimony, the ALJ found that "since leaving Elsinore, [the claimant] has been earning $800 per month making and selling ceramic items" for an average weekly wage of $184.62. Therefore, the ALJ awarded temporary partial disability benefits based upon the difference between $480.22 and $184.62.
The claimant argues that her testimony does not support an inference that her "net" earnings from ceramic sales equals an "average" of $184.62 per week. Moreover, the claimant argues that her testimony directly contradicts the ALJ's finding that she has earned $800 per month selling ceramics since September 1995. We reject these arguments.
Because the determination of the claimant's average weekly wage from selling crafts is a question of fact, the ALJ's determination is subject to the substantial evidence test. Accordingly, we are bound by the plausible inferences the ALJ drew from the record. Monfort Inc. v. Rangel, supra.
The claimant's testimony is subject to conflicting inferences. Admittedly, the claimant stated that she did not begin selling crafts until March 1996. (Tr. p. 50). However, the claimant also stated that she was selling crafts at the time she applied for unemployment benefits. (Tr. p. 17). With regard to the date she applied for unemployment benefits, the claimant stated "it was after September or October," but also stated that she applied in September 1995. The ALJ implicitly resolved the conflicts by crediting that part of the claimant's testimony which supports a finding that she was selling crafts as of October 18, 1995. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness' testimony).
Furthermore, the claimant testified that her "direct profit" selling crafts above her "costs and everything." was $800 a month. (Tr. p. 19). Based upon this testimony the ALJ could, and did infer that the claimant's net earnings from craft sales equaled $800 per month.
The claimant's remaining arguments on this issue are unpersuasive. Even though the claimant's testimony does not compel a finding that the claimant earned an average of $800 a month selling crafts, we cannot say that the ALJ's findings are an unreasonable interpretation of the claimant's testimony. Therefore, we have no grounds to interfere with the ALJ's determination.
Neither are we persuaded that the ALJ erred in "suspending" the claimant's temporary partial disability benefits for one week on account of the claimant's earnings as a substitute teacher for Palmer Lake. The ALJ found that the claimant worked five to six days for Palmer Lake at a rate of $7.50 per hour for a total of $300.
The claimant does dispute that she worked for Palmer Lake after October 18, 1995. Therefore, the ALJ's findings compel the conclusion that for the week she worked at Palmer Lake the claimant's combined earnings exceed her pre-injury average weekly wage. ($184.62 + $300 = $484.62). Consequently, the claimant is not entitled to any temporary disability benefits for that week, and the ALJ did not err in denying temporary partial disability benefits for that week.
IT IS THEREFORE ORDERED that the ALJ's order dated February 24, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed August 13, 1997 to the following parties:
Stephanie L. Wiecks, P.O. Box 267, Palmer Lake, CO 80133
Ronald Rairigh, American Airlines, 6343 Colony Cir., Colorado Springs, CO 80919
Personnel Manager, Elsinore, L.P., 19301 Campus Dr., Santa Ana, CA 82707
Fran Wood, The Hartford, P.O. Box 221700, Denver, CO 80222
Randy J. Stumpf, Employers Ins. of Wausau, P.O. Box 101517, San Antonio, TX 78201
Kathleen W. Robinson, Esq., 802 S. Tejon, Colorado Springs, CO 80903 (For the Claimant)
Karl A. Schulz, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For American Airlines Respondents)
William M. Sterck, Esq., 679 Grant St., Denver, CO 80203 (For Elsinore Respondents)
By: _______________________________