Opinion
W.C. No. 4-293-338
November 14, 1997
FINAL ORDER
The Renaissance Salon and its insurer, State Farm Fire and Casualty Company (collectively the State Farm respondents) seek review of an order of Administrative Law Judge Friend (ALJ) which held them liable for medical benefits in connection with an occupational disease. We set aside the order insofar as it requires the State Farm respondents to pay for Dr. Imber's treatment, and remand the matter to the ALJ for the entry of a new order on that issue.
Between 1988 and 1995 the claimant worked as a manicurist at the Denver Oxford Club (Oxford). In May 1995 the claimant left Oxford and began working as a manicurist at the Renaissance Salon. In March 1996 the claimant left the Renaissance Salon and became a self-employed manicurist.
In June 1996, the claimant was diagnosed with contact dermatitis from her occupational exposure to acrylic nail products. Thereafter, the claimant filed a claim for workers' compensation benefits alleging that she sustained an occupational skin disease at Oxford. The claimant did not file a claim against the State Farm respondents. However, the ALJ granted a motion filed by Oxford and its insurer, the Colorado Compensation Insurance Authority (collectively the CCIA respondents) to join the State Farm respondents as parties to the claim.
Following a hearing, the ALJ found that the claimant suffered three separate compensable injuries from her occupational exposure to acrylic materials. (Tr. pp. 74-80); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the written findings). The ALJ found that claimant suffered an occupational disease at Oxford, and then suffered an industrial accident when she spilled acrylics on her chest in 1992. The ALJ further found that the claimant's occupational dermatitis improved after the 1992 spill, until it was substantially aggravated by her exposure to acrylics in the fall of 1995, when she suffered a new occupational disease while working as a manicurist for the Renaissance Salon. The ALJ found that the claimant's exposure to acrylics during her self-employment did not aggravate her condition.
Under these circumstances, the ALJ determined that the State Farm respondents are liable for the medical expenses incurred to treat the occupational disease between September 1995 and June 1996, including the treatment of Dr. Imber and Dr. Stewart. In support, the ALJ found that the parties "stipulated" that Dr. Imber and Dr. Stewart are authorized to treat the occupational disease.
I.
Relying upon Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984), the State Farm respondents first contend that they are not indispensable parties to the claim against Oxford. Therefore, they argue that the ALJ erred in granting the CCIA respondents' motion to join them as respondents to the claim. We perceive no error.
In Valdez, the court addressed an argument that it was error for an ALJ to refuse to join a subsequent employer in a claim based upon an occupational disease. The court concluded that an ALJ's refusal to join a subsequent employer is not an abuse of discretion if the subsequent employer is not an "indispensable party" to the claim.
Here, the issue is not whether the State Farm respondents are indispensable parties that must be joined in the claim against Oxford. Rather, the issue is whether the ALJ erred in determining that the State Farm respondents may be joined in the claim. Accordingly, the State Farm respondents' reliance on Valdez is misplaced.
C.R.C.P. 20(a) provides in pertinent part that:
"All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." (Emphasis added).
The Colorado Rules of Civil Procedure apply to claims for workers' compensation insofar they are not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act (Act). Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Section 8-43-207(1)(g), C.R.S. 1997 of the Act authorizes an ALJ to resolve procedural motions, and does not expressly prohibit the ALJ from granting a motion for permissive joinder. Therefore, we conclude that C.R.C.P. 20(a) is dispositive of the State Farm respondents' argument.
In Sutterfield v. Arapahoe County District Court, 438 P.2d 236 240, 165 Colo. 225 (Colo. 1968), the court held that the plaintiff's "injury" from two separate automobile accidents constituted the same "occurrence" for purposes of Rule 20(a), and that the liability for the plaintiff's injury was a question of law common to the alleged defendants in both accidents. Therefore, the court concluded that it was proper to join all of the alleged defendants in one cause of action.
Furthermore, the Sutterfield court held that wide discretion will be afforded the application of Rule 20(a) in determining whether the necessary prerequisites for joinder exist. The standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason." Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the record reflects that the claimant sought workers' compensation benefits in connection with an injury due to her occupational exposure to acrylics, and there is no dispute that the claimant was exposed to acrylics during her work at Oxford and the Renaissance Salon. Similarly, the question of liability for the claimant's injury involves questions of law and fact common to both Oxford and the Renaissance Salon. Thus, the elements for a permissive joinder exist.
In reaching this conclusion, we recognize that the claimant did not file a workers' compensation claim against the State Farm respondents and took the position that they were not responsible for her dermatitis. However, Rule 20(a) also states that "a plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded" to grant a permissive joinder. Consequently, we do not believe the joinder of the State Farm respondents to this claim is dependent on the claimant's filing of a separate workers' compensation claim against them.
Moreover, we recognize that the ALJ's written order does not contain any specific findings of fact concerning the joinder issue. However, we understand the ALJ's oral comments to reflect his determination that in view of the fact that the State Farm respondents participated in the pre-hearing discovery and attended the hearing ready to defend the claim, judicial economy was served by joining them in the claim against Oxford. (Tr. March 6, 1997, p. 9); CAN-USA Construction, Inc. v. Gerber, supra. Under these circumstances, it would serve no purpose to remand the matter to the ALJ for specific findings of fact which articulate the basis for the joinder. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990) (ALJ's findings must be sufficient for court to determine the basis for the decision).
Furthermore, it does not exceed the bounds of reason to grant a permissive joinder for the purpose of promoting judicial economy. Therefore, the ALJ did not abuse his discretion in joining the State Farm respondents to the claim. See Coates, Reid Waldron v. Vigil, supra.
II.
Alternatively, the State Farm respondents contend that the ALJ erred in holding them liable for the claimant's occupational disease. In support, they assert that the ALJ failed to determine the claimant's onset of disability and therefore, they argue that the ALJ's findings of fact are insufficient to permit appellate review of whether the ALJ applied the proper legal standard in resolving the liability issue. We reject this argument.
It is well established that the law in effect on the date of the claimant's "onset of disability" governs the rights and liabilities of the parties in a claim based upon an occupational disease. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995) ; SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). Furthermore, the determination of the "onset of disability" is a factual determination for the ALJ.
Here, the ALJ found that the claimant sustained an occupational disease in the "fall" of 1995 when she was working for the Renaissance Salon. The ALJ also ordered the State Farm respondents to pay medical benefits incurred after September 1995. Because a claimant does not sustain a compensable occupational disease until the "onset of disability," the ALJ's findings reflect his implicit determination that the claimant's onset of disability occurred in September 1995. See Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Further, the ALJ's findings compel a conclusion that the claim is governed by the provisions of Senate Bill 91-218 (SB 218) currently codified at § 8-43-304(1), C.R.S. 1997. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993) (SB 218 applies to injuries arising on or after July 1, 1991).
Section 8-43-304(1), C.R.S. 1997, provides that where compensation is payable for an occupational disease, the employer in whose employment the claimant was "last injuriously exposed" to the hazards of the disease and "suffered a substantial permanent aggravation thereof" is solely for the disease. Monfort Inc. v. Rangel, supra. It follows that liability for an occupational disease may not be shifted from one employer to a subsequent employer, unless there is proof that the subsequent employment resulted in both an "injurious exposure" and a "substantial permanent aggravation."
In this case, the ALJ found that the claimant's exposure to acrylics during her self-employment did not aggravate her pre-existing condition. (Findings of Fact 9, Conclusions of Law). The evidence is subject to highly conflicting inferences. However, the ALJ's determination is a plausible interpretation of the record, and therefore, the ALJ's determination must be upheld on review. Section 8-43-301(8), C.R.S. 1997; see also Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (appellate issue is whether the evidence when viewed in the light most favorable to the prevailing party is sufficient to support the ALJ's pertinent findings).
Moreover, the ALJ's finding that the claimant's acrylic exposure during her self-employment did not aggravate her condition is alone sufficient to defeat the State Farm respondents' argument that the claimant's subsequent self-employment is liable for the injury. Accordingly, it is immaterial whether the claimant sustained an "injurious exposure" to the hazards of the disease during her self-employment. Consequently, we need not consider the State Farm respondents' argument that there is no evidence in the record to support the ALJ's finding that the claimant only used acrylics a total of "five hours between April 1, 1996 and May 30, 1996." (Finding of Fact 8).
III.
The State Farm respondents also contend that the ALJ erred in holding them liable for Dr. Imber's medical treatment. In particular, they contend that the record is contrary to the ALJ's determination that the respondents "stipulated" to Dr. Imber's authorization. We agree.
At the commencement of the hearing, the claimant indicated that she was seeking reimbursement for the medical expenses incurred for treatment by Dr. Imber and Dr. Stewart. The State Farm respondents did not dispute Dr. Stewart's authorization but expressly denied Dr. Imber's authorization. Specifically, they asserted that Dr. Imber could not be an authorized treating physician for any occupational disease which occurred during the claimant's employment at the Renaissance Salon because his treatment began several years before the claimant became employed at the Renaissance Salon. (Tr. March 6, 1997, pp. 12, 16). Accordingly, the record does not support the ALJ's finding that Dr. Imber's authorization to treat the 1995 occupational disease was established pursuant to "stipulation," and the finding must be set aside.
In the absence of the ALJ's erroneous finding concerning the existence of a stipulation regarding Dr. Imber's status as an authorized treating physician, ALJ's findings of fact are insufficient to support his conclusion that the State Farm respondents are liable for Dr. Imber's treatment. Therefore, we must set aside the order which requires the State Farm respondents to pay for the treatment provided by Dr. Imber between September 1995 and March 1996, and remand the matter for additional findings and the entry of a new order on that issue.
For purposes of our remand, we agree with the State Farm respondents' assertion that the last injurious exposure rule does not govern liability for medical benefits in a claim based upon an occupational disease. Rather, the insurer on the risk at the time the medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986).
Moreover, the insurer is only liable for emergency and "authorized" medical treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Section 8-43-404(5)(a), C.R.S. 1997, allows the employer to select the authorized treating physician at the time of the injury, and if the employer fails to select a physician, the right of selection passes to the claimant. The employer's right to select the treating physician is triggered when the employer has:
"some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim."
Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984). Furthermore, oral notice is sufficient to trigger the employer's duty to designate a provider. 689 P.2d at 684.
On remand, the ALJ must determine when the Renaissance Salon had sufficient knowledge to trigger its duty to tender medical treatment, and whether the Renaissance Salon tendered the services of treatment at that time. If no treatment was tendered, then the right of selection passed to the claimant, and the treatment provided by the physician she selected after that date is authorized. Based upon these determinations the ALJ shall enter a new order concerning the State Farm respondents' liability for Dr. Imber's treatment.
The State Farm respondents' remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated May 27, 1997, is set aside insofar as it requires the State Farm respondents to pay for Dr. Imber's treatment of the claimant's occupational disease between September 1995 and June 1996, and the matter is remanded to the ALJ for a new order on that issue, consistent with the views expressed herein. In all other respects the ALJ's order 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. 1997.
Copies of this decision were mailed November 14, 1997 to the following parties:
Diane E. Grove, 2084 Elm St., Denver, CO 80207
Denver Oxford Club, Ltd., 1616 17th St., Denver, CO 80202-1271
Renaissance Salon, 999 18th St., Ste. 148, Denver, CO 80202-2401
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
State Farm Fire Casualty Co., P.O. Box 280929, Lakewood, CO 80228
Barbara J. Furutani, Esq. David M. Pantos, Esq., 1732 Race St., Denver, CO 80206 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For CCIA Respondents)
Thomas Stern, Esq., 1700 Broadway, Denver, CO 80290-1701 (For the State Farm Respondents)
By: __________________________