4-323-168 (1998). JERRE HARE (Final Order).

• Case Date: July 30, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-323-168 (1998). JERRE HARE (Final Order) INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF JERRE HARE, Claimant, v. DILLON COMPANIES d/b/a KING SOOPERS, INC., Employer, and SELF-INSURED, Insurer, Respondent.W. C. Nos. 4-323-168 and 4-345-004FINAL ORDER The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) dated December 30, 1997, which found the claimant sustained an occupational disease, required the respondent to pay medical benefits, and denied the respondent's request for penalties under § 8-43-102(2), C.R.S. 1997. We affirm the award of medical benefits and dismiss the remainder of the appeal for lack of a final order. The claimant is employed as a night stocker for the respondent. In W.C. No. 4-323-168, the claimant alleged that in early 1996, he was physically assaulted by a co-worker and suffered injuries to his shoulders, neck and right knee. In W.C. No. 4-345-004, the claimant alleged that pre-existing injuries from the assault were aggravated by the repetitive activities of his employment. The claims were consolidated for hearing. The ALJ found that there was no physical assault, and therefore denied and dismissed W.C. No. 4-323-168. However, the ALJ found that the claimant had knee and shoulder problems which predated the alleged assault, and worsened after the alleged assault. The ALJ also found that the claimant's job duties required repetitive lifting and bending. Consequently, the ALJ found the claimant met his burden to prove that he sustained an occupational disease, and ordered the respondent to pay for the medical treatment by the authorized treating physicians. The ALJ also rejected the respondent's assertion that the claimant failed to give written notice of the occupational disease within thirty days of the first manifestation. Therefore, the ALJ refused to impose penalties under § 8-43-102(2). I. On review, the respondent contends that the ALJ erred in finding the claimant sustained an occupational disease. The respondent contends that, because the claimant alleged that his "pre-existing" condition was caused by the assault, and the ALJ found there was no assault, the ALJ erred in crediting the claimant's testimony that he suffered a work-related aggravation of his pre-existing condition. We disagree. An occupational disease is a...