Opinion
W.C. Nos. 3-986-865; 4-226-005
March 9, 2000
ORDER OF REMAND
The claimant seeks review of an order of former Administrative Law Judge Wells (ALJ) dated April 24, 1998. The claimant contends the ALJ erred insofar as he determined that she is barred from seeking workers' compensation benefits for a new injury to her upper extremities. We agree, and therefore set aside the contested portion of the ALJ's order and remand the matter for further proceedings.
On April 4, 1990, the claimant suffered a work-related injury to her neck and upper extremities. The claimant was subsequently diagnosed with fibromyalgia, and a repetitive strain of the wrists and forearms. The respondent admitted compensability in W.C. No. 3-986-865, which was the subject of a full and final settlement dated November 5, 1991. In exchange for a lump sum payment, the claimant waived the right to reopen the claim except upon a showing of fraud or mutual mistake of material fact. The claimant also waived the right to further benefits based upon a worsening of condition and to "make any kind of claim against the Respondent of any unknown or unanticipated injuries, disabilities, conditions or diseases which are a consequent of Claimant's accidental injury and/or employment" with the respondent. Thereafter, the claimant remained employed by the respondent.
In 1994, the claimant filed W.C. No. 4-226-005 which concerns injuries to her elbows, low back, and right leg. The claimant also alleged new injuries due to the substantial, industrial aggravation of her pre-existing upper extremity problems. The respondent denied liability for the elbow and upper extremity injuries. The claimant applied for a hearing on the issues of compensability, medical and temporary disability benefits. A hearing was scheduled for February 18, 1999.
At the commencement of the hearing, the ALJ determined that a substantial permanent aggravation of a pre-existing condition may establish a "worsening" of the original condition, but such evidence is insufficient to support the finding of a new injury. The ALJ also noted that the claimant expressly waived the right to additional benefits based upon new injuries or a worsening of the original injury. Therefore, the ALJ determined that the terms of the full and final settlement barred the claimant from seeking additional benefits based upon the substantial aggravation of the fibromyalgia or repetitive strain of the wrists and forearms. The ALJ also determined the claimant is barred from recovering benefits for the worsening of her upper extremity injuries in the absence of an order reopening the settlement due to fraud or mutual mistake of material fact.
On review, the claimant contends the ALJ misconstrued the settlement agreement to bar a claim based upon a new injury to the upper extremities. The claimant also argues the ALJ erred in determining that the substantial industrial aggravation of a pre-existing injury may not constitute a new injury. We agree.
Contrary to the ALJ determination, a pre-existing condition does not disqualify a claimant from establishing a new injury where the employment aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which the benefits are sought. 2 Larson's Workers' Compensation Law, § 9.02(1) (1999); Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). In Vicory, the claimant sustained a compensable injury when the act of opening a door at work caused him to fracture his arm which was weakened by a pre-existing but undetected cancerous tumor. Because the employment activity acted upon the claimant's pre-existing condition, and "precipitated" the injury, it was compensable. In Subsequent Injury Fund v. Thompson, supra, the claimant suffered two separate, compensable work-related heart attacks. The first attack resulted in permanent partial disability. The second resulted in permanent total disability. Similarly, in Eastman Kodak Co. v. Industrial Commission, 725 P.2d 85 (Colo.App. 1986) , overruled on other grounds, Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989), the claimant's pre-existing permanent disability from a prior industrial back injury did not preclude the claimant from recovering workers' compensation benefits for a second, separate compensable back injury with the same employer.
Furthermore, the aggravation does not need to be "substantial" or "permanent" to support a finding of a compensable new injury. See Conry v. City of Aurora, W.C. No. 4-195-130, (April 24, 1996) (industrial ammonia exposure resulted in compensable temporary aggravation of pre-existing asthma). The statutory requirement for proof of a "substantial permanent aggravation" only applies to the assignment of liability between multiple employers or insurers when there is an occupational disease in the first instance that is aggravated by subsequent employment. § 8-41-304(1), C.R.S. 1999; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). The claimant has a compensable new injury if the employment-related activities aggravate, accelerate, or combine with the pre-existing condition to cause a need for medical treatment or produce the disability for which benefits are sought. § 8-41-301(1)(c), C.R.S. 1999; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
In contrast, the claimant suffers a "worsening" of a pre-existing condition if the change is the natural and proximate consequence of a prior industrial injury, without any contribution from a separate, intervening causative factor. See Larson's Workers' Compensation Law, § 81.31(b) (1999). The issue of whether the claimant's condition is the natural and proximate progression of the original industrial injury or a new injury is one of fact for resolution by the ALJ based upon the evidentiary record. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Furthermore, § 8-41-205, C.R.S. 1999, provides that a claimant may not waive the right to compensation or medical benefits "for aggravation of any preexisting condition or disease." Because the law precludes the waiver of unknown claims, the 1991 settlement agreement is invalid if construed as a waiver of the claimant's right to pursue a new claim based upon the aggravation of her pre-existing upper extremities injuries.
The respondent contends that § 8-41-205 does not apply to the waiver of claims in a full and final settlement agreement. However, § 8-43-204, C.R.S. 1999, which governs the effect of agreements for the full and final settlement of workers' compensation claims provides that the claimant may "settle all or part of any claim for compensation, benefits, penalties or interest." Therefore, on its face, the statute limits settlements to those injuries which are the subject of the claim being settled. Consequently, we conclude the ALJ erred insofar as he found that the terms of the settlement agreement barred the claimant from pursuing a claim for new injuries to her upper extremities, and erroneously denied the claim without affording the claimant an opportunity to present evidence in support of the alleged new injury to her upper extremities. Therefore, we set aside the ALJ's order and remand the matter for a hearing on the claimant's request for benefits in W.C. No. 4-226-005.
In view of our disposition the claimant's remaining arguments are moot.
IT IS THEREFORE ORDERED that the ALJ's order dated April 24, 1999, is set aside and the matter is remanded to the Division of Administrative Hearings for further proceedings.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona Halsey
Copies of this decision were mailed March 8, 2000 to the following parties:
Patricia A. Vega, 3954 Iron Horse Trail, Colorado Springs, CO 80917
City of Colorado Springs, 701 N. Circle Dr., Colorado Springs, CO 80909
Cynthia M. Pring, Esq., P. O. Box 60219, Colorado Springs, CO 80960-0219 (For Claimant)
Diane M. Astourian, Esq., P. O. Box 6094, Colorado Springs, CO 80934-6094 (For Claimant)
Chad J. Hessel, Esq., 108 E. St. Vrain, #20, Colorado Springs, CO 80903 (For Respondent)
BY: A. Pendroy