Opinion
W.C. Nos. 3-962-626, 4-168-646
March 19, 1996
FINAL ORDER
In these consolidated workers' compensation cases, the respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which awarded permanent total disability benefits for the claimant's occupational disease. We affirm.
The ALJ found that the claimant suffers from "bilateral medial epicondylitis and bilateral wrist flexor tenosynovitis, as well as dorsal compartment tenosynovitis on the right." The ALJ determined that these conditions resulted from repetitive motion caused by the claimant's job as a "presser."
The ALJ also found that the claimant's "onset of disability" from the bilateral occupational disease occurred in November 1989. Furthermore, the ALJ concluded that the disease progressed and caused additional disability in March 1993. In reaching this conclusion, the ALJ stated that the 1993 symptoms were a "natural and direct progression of her 1989 bilateral upper extremity disability," not a new or intervening injury.
Finally, the ALJ determined that the claimant is permanently and totally disabled because she will "not retain nor will she regain efficiency in some substantial degree in the fields of general employment." In reaching this conclusion the ALJ specifically relied on the vocational opinion of Mr. Blythe, which he found to be more credible than the testimony of the respondents' expert.
The parties stipulated that the claimant's average weekly wage was higher in 1993 than it was in 1989. Thus, despite the fact that the ALJ found that the 1989 injury was the cause of the claimant's permanent total disability, he based the award on the claimant's 1993 average weekly wage.
I.
On review, the respondents first contend that the ALJ erred in finding that the claimant's permanent total disability is the result of the 1989 occupational disease rather than a new occupational disease which the claimant allegedly incurred in 1993. In support of this argument, the respondents cite medical records showing that the claimant did not complain of "bilateral" difficulties in 1989 and 1990, and the expert opinion of Dr. Bussey. We reject this argument.
The question of whether a claimant's disability is the result of one or another of two possible causes is one of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
Causation need not be proven by medical evidence if the surrounding circumstances justify an inference of causation. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical evidence is presented, it is for the ALJ to assess the weight and credibility of such evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents' argument notwithstanding, the record supports the ALJ's finding that the claimant's disability is the result of the progression of the 1989 occupational disease, not the result of the new disease which the claimant allegedly sustained in 1993. The claimant testified that she experienced difficulty with both hands and wrists in 1989. (Tr. p. 14). Moreover, this testimony was corroborated by Dr. Quick's note of October 13, 1993, which states that the claimant had "problems with varying degrees of upper bilateral extremity pain for four to five years."
This evidence, taken with the evidence of the claimant's long history of repetitive work, supports the ALJ's conclusion that the 1989 occupational disease was the cause of the claimant's permanent total disability. It is true that some of the evidence, including the testimony of Dr. Bussey, would support a contrary conclusion. However, we are not free to substitute our judgment for that of the ALJ concerning the weight of the medical evidence. Rockwell International v. Turnbull, supra.
II.
The respondents next contend that the ALJ erred in applying the standard of permanent total disability as it existed prior to the 1991 enactment of Senate Bill 91-218 (SB 218). The respondents assert that the ALJ should have applied the standard found at § 8-40-201(16.5), C.R.S. (1995 Cum. Supp.). We disagree.
A claim based upon an occupational disease is governed by the law in effect at the date of the "onset of the disability." See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). Here, the ALJ found from substantial evidence that, the claimant's occupational disease first became disabling in 1989. Therefore, there was no error in his application of the pre-SB 218 standard for permanent total disability.
Insofar as the respondents are asserting that the award of permanent total disability was not supported by substantial evidence, we disagree. The claimant's expert vocational evidence, medical evidence concerning the extent of the claimant's restrictions, and the claimant's own testimony support the ALJ's inference that the claimant has lost, and will not regain, efficiency in some substantial degree in the fields of general employment. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993).
III.
The respondents next contend that the ALJ erred in awarding permanent total disability benefits based on the claimant's 1993 average weekly wage rather than the 1989 average weekly wage. The respondents argue that, under the statute currently codified at § 8-42-102(2), C.R.S. (1995 Cum. Supp.), the average weekly wage should have been
calculated based on the claimant's earnings "at the time of the injury." We reject this argument.
In Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the Court of Appeals held that the statute currently codified at § 8-42-102(3), C.R.S. (1995 Cum. Supp.), affords the ALJ discretion to disregard the wages at the time of the injury if the evidence shows that the claimant would have earned a higher wage during a subsequent period of disability. Here, it is apparent that the ALJ concluded that, because the claimant earned higher wages in 1993 than she earned in 1989, it would be unfair to award permanent total disability benefits based on the claimant's 1989 earnings. The ALJ did not abuse his discretion under these circumstances.
IV.
The respondents' final contention is that the ALJ should have apportioned a part of the claimant's permanent total disability to occupational injuries which she allegedly sustained in 1970. In support of this contention, the respondents cite testimony of their vocational expert that "at least fifty percent of Ms. Zermano's current disability is related to problems which occurred prior to her injury of March 1993." Apparently, the expert's statement pertains to a 1978 back injury and the occupational disease which the ALJ found occurred in 1989. We reject this argument.
The statute currently codified at § 8-42-104(2), C.R.S. (1995 Cum. Supp.) provides that:
"In case there is a previous disability, the percentage of disability for subsequent injuries 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."
Here, the ALJ could reasonably conclude that there was no "residual disability" from the 1978 problem at the time the claimant's sustained the 1989 occupational disease. The claimant had returned to her regular employment and apparently performed it for more than a decade at the time of the 1989 injury. Therefore, the ALJ need not have concluded that there was any disability, attributable to the 1978 problem, at the "time of the subsequent injury." See Colorado Fuel and Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968).
Moreover, the ALJ determined that there was no new injury in 1993 and that the claimant's condition in 1989 and 1993 involve the same occupational disease. Therefore, the vocational expert's statement that fifty percent of the claimant's disability is related to the 1993 injury and fifty percent is related to problems existing prior to 1993 affords no basis for apportionment.
IT IS THEREFORE ORDERED that the ALJ's order dated July 10, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
_____ David Cain _____ Kathy E. Dean NOTICEThis Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 19, 1996 to the following parties:
Mary Zermano, 23850 Weld County Road 7, Loveland, CO 80537
Bennett Cleaners, Inc., 1214 9th Ave., Greeley, CO 80631-4018
Colorado Compensation Insurance Authority. Attn: Legal Dept. (Interagency Mail)
Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4566
(For the Respondents)
Miguel Martinez, Esq., 1102 Fifth St., Ste. A, Greeley, CO 80631
(For the Claimant)
By: _____