Opinion
W.C. No. 4-250-227
August 2, 1996
FINAL ORDER
The respondents, Jordan Building Center (the employer) and its insurer, Lumber Mutual Insurance (Lumber), seek review of an order of Administrative Law Judge Erickson (ALJ) which ordered them to pay the workers' compensation benefits awarded to the claimant on account of two occupational diseases. We affirm.
The ALJ found that claimant worked for the employer as a carpenter from 1989 to 1992 and then again from 1993 to April 1995. The ALJ found that the claimant's job duties included extensive use of power tools. The claimant testified that he experienced pain and numbness in his right hand while building a set of wine racks at work on December 9, 1994. The ALJ found that the claimant continued to perform his regular work after December 9, but that his symptoms continued to worsen. Between February and April 19, 1995, the claimant also developed pain and numbness in the left hand and elbow. On April 19, 1995 the claimant's symptoms precluded him from continuing to work.
Relying on the opinions of Dr. Yocum, Dr. Hamlin and Dr. Glassrock the ALJ determined that the claimant suffered two separate occupational diseases, one diagnosed as carpal tunnel syndrome (CTS) and one diagnosed as ulnar neuropathy. The ALJ also determined that the "onset of disability" from the diseases did not occur until 1995, when Lumber was the employer's workers' compensation carrier. Consequently, the ALJ determined that the respondents are liable for the temporary disability and medical benefits due in connection with the claimant's injuries.
On review the respondents contend that the ALJ erred in finding that the claimant's injuries were the result of "occupational diseases" and not an "industrial accident" on December 9, 1994. Alternatively, the respondents contend that, insofar as the claimant sustained two occupational diseases, the ALJ misconstrued the "onset of disability" rule. Further, the respondents contend that the ALJ erred in finding that the claimant suffered a "substantial permanent aggravation" of his condition in 1995. We perceive no error.
I.
Where an "injury" is traceable to a particular time, place and cause the claimant has sustained an "industrial accident." Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (the term "injury" encompasses both accidental injuries and occupational diseases). In contrast, where an "injury" is acquired in the ordinary course of employment and is a natural incident of the employment, the claimant has sustained an "occupational disease." Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). The fact that a condition becomes acutely symptomatic does not transform it from an occupational disease into an accidental injury. Campbell v. IBM Corporation, supra; Masdin-Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
The determination of whether the claimant sustained an occupational disease or an accidental injury is factual in nature, and therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record, and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Campbell v. IBM Corporation, supra. Furthermore, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, and his assessment of the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, supra.
As argued by the respondents, the courts have determined that CTS may result either from a traumatic injury or an occupational disease. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d at 1158. In Delta Drywall, the claimant was working as a carpenter when he fell from a scaffold. The scaffolding accident was determined to be the specific trauma which caused the claimant's subsequent bilateral CTS. Therefore, the claimant was determined to have sustained an accidental injury and not an occupational disease.
The respondent contends that this claim is analogous to the facts in Delta Drywall. However, the ALJ found that building the wine racks on December 9, 1994 was not a traumatic event which caused the claimant's CTS. Instead the ALJ determined that the claimant' CTS developed over time from his employment activities, and this finding is supported by the claimant's testimony.
The claimant testified that throughout his employment he regularly used power tools (Tr. pp. 12, 13). He stated that he experienced numbness in his hands after working on the wine racks. However, he also stated that he had experienced intermittent symptoms prior to that date where he would "shake it out and it would go away." (Tr. p. 17). The claimant also stated that after December 9 he continued to perform his regular work despite being restricted to "light duty," and that his symptoms continued to worsen. He stated that by January 1995, he was no longer able to"shake" out the pain and numbness. (Tr. p. 18). Moreover, the claimant testified that in late December 1994 he began to develop symptoms in his left upper extremity, and by February 1995 had constant pain in the left elbow. (Tr. pp. 20, 23, 26, 28.
The medical record also contains substantial evidence in support of the ALJ's determination. Specifically, in a report dated January 31, 195, Dr. Yocum stated that there was " no particular injury or incident that precipitated [the claimant's] symptoms or caused [the claimant's] problems." Rather, Dr. Yocum reported that the claimant had a gradual onset of CTS. (Yocum Depo. p. 7). Similarly, Dr. Hamlin stated that the claimant's condition was related to his employment use of power tools, and that no one incident caused the CTS. (Hamlin Depo. pp. 20, 22, 23, 28). In contrast, Dr. Glassrock was equivocal about the cause of the claimant's CTS. (Glassrock Depo. p. 8). However, Dr. Glassrock stated that he doubted that the claimant's left elbow problems were the result of the December 9 work on the wine racks. (Glassrock Depo. p. 11). Based upon this evidence, the ALJ could, and did, infer that the claimant's condition was a natural incident of the claimant's work, and not his particular work on December 9, 1994. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit all, part or none of witness' testimony).
II.
Next, we reject the contention that the ALJ's "onset of disability" determination was solely based upon the evidence that the claimant did not lose any time from work until April 1995. To the contrary, the ALJ found that the onset of disability occurred in 1995 when the claimant became less efficient in the performance of his job duties, and this determination is supported by the claimant's testimony. (Tr. pp. 16, 17, 32, 33). In so doing, the ALJ expressly recognized that the "onset of disability" may occur when the occupational disease impairs the claimant's ability to efficiently and effectively perform the duties of his regular employment or results in lost time from work. See Discussion and Conclusions of Law #1; Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). Under these circumstances, we are not persuaded that the ALJ misapplied the "onset of disability" rule in finding that the claimant did not sustain the occupational diseases until Lumber became the insurer on the risk.
III.
Lastly, we perceive no grounds to disturb the ALJ's determination that the claimant was "last injuriously exposed" to the hazards of the occupational diseases and suffered a "substantial permanent aggravation" when Lumber became the insurer on the risk. A "last injurious exposure" is an exposure to a concentration of the "hazard" which would be sufficient to cause the disease in the event of prolonged exposure. See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
As previously noted, the claimant stated that his condition continued to worsen in 1995 despite work restrictions, and that the worsening involved bilateral pain symptoms. The claimant also testified that as a result of the worsening he was physically unable to work after April 19, 1994. This testimony is consistent with Dr. Glassrock's report of April 8, 1995, which indicates "overuse at work has increased C.T.S x's begun to cause ulnar nerve entrapment bilat." Similarly, the October 10, 1995 report of Dr. Hamlin reflects his opinion that "an aggravating factor" in the claimant's condition is the ongoing use of vibrating power tools in 1995. Therefore, the ALJ's finding that the claimant suffered a "substantial permanent aggravation" of his condition after January 1, 1995 represents a plausible interpretation of the record, which is binding on appeal. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated December 11, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. DeanNOTICE 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. (1995 Cum. Supp.).
Copies of this decision were mailed August 2, 1996 to the following parties:
Bill K. Cothren, 2100 W. 100th Ave., #83, Denver, CO 80221
Jordans Building Center, 5000 Ward Rd., Wheat Ridge, CO 80033-2018
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Lumber Mutual Insurance, Attn: Diane Struble, 3601 Minnesota Dr., Ste. 400, Minneapolis, MN 55435 Clifford J. Enten, Esq., 50 S. Steele St., #586, Denver, CO 80209 (For the Claimant)
Thomas E. J. Hazard, Esq. Douglas P. Ruegsegger, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For CCIA Respondents)
Gregg C. McReynolds, Esq., 7400 E. Caley Ave., #300, Englewood, CO 80111 (For Liberty Respondents)
BY: _______________________