Opinion
W.C. No. 4-575-404
March 18, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove a compensable occupational disease and, therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.
The claimant was employed as driver/clerk for 15 years, which required her to walk on a concrete floor, and step in and out of a truck to deliver packages. On November 17, 2002, the claimant stepped in a hole at home causing her to fall. The claimant subsequently reported bilateral knee pain. X-rays revealed severe degenerative joint disease (DJD) in both knees, and an MRI revealed a lateral meniscus tear. In addition, the claimant was diagnosed with traumatic chondromalacia, patello-femoral syndrome, and right plantar fasciitis. The claimant alleged the DJD was caused by an occupational disease which became symptomatic following the November 17 incident.
In a report dated July 23, 2003, Dr. Sparr opined it was no more likely the claimant's DJD was caused by employment than daily weight-bearing on the knees due to the claimant`s large stature. In contrast, the claimant's personal physician, Dr. McCurry, opined that the DJD and plantar fasciitis were related to the claimant's increased work duties in the fall and winter of 2002.
The ALJ found "it is possible" the claimant's DJD was caused by her work activities. However, implicitly crediting the opinions of Dr. Sparr, the ALJ found the preponderance of the evidence failed to show it was probable the work caused the DJD. In support, the ALJ found that for six years preceding the fall at home in November 2002 the claimant made no report of knee pain at work, was not disabled by the DJD, and requested no job change due to knee pain. The ALJ therefore concluded the claimant failed to prove she suffered an occupational disease.
On review the claimant contends the evidence establishes that the employment caused the underlying DJD. Therefore, she argues that she suffered a compensable injury even though the disease was not symptomatic until after the non-work-related aggravation in November 2002.
The claimant also contends the ALJ erroneously attributed the DJD to the claimant's size and weight. The claimant argues that an employer takes the claimant as it finds her, and that insofar as her large stature predisposed her to develop DJD, that merely means she was vulnerable to suffering an occupational disease from a lesser industrial exposure than a person who weighed significantly less. The claimant's arguments do not persuade us there is any error in the ALJ's order.
Initially, we note that the claimant's Designation of Record includes the "complete Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file and our review is limited to the evidentiary record before the ALJ. Further, there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file.
The claimant suffers an occupational disease when the disease results directly from the employer conditions, and follows as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment. Section 8-40-201(14), C.R.S. 2003. In Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that where the occupational exposure is not a precondition to the development of the disease, the claimant suffers an occupational disease only to the extent that the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought. Once the claimant establishes a causal connection between the employment and her disability the burden shifts to the respondents to prove a non-work-related cause of the disease. Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
The issue of whether the claimant established the requisite connection between her DJD and her employment was a question of fact for resolution by the ALJ, and the ALJ's findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Contrary to the claimant's contention, the ALJ rejected the claimant's theory that there is a causal relationship between the underlying DJD and the claimant's employment. We further note that although the ALJ expressly cited Dr. Sparr's opinion that the DJD was caused by the claimant's large stature, the ALJ did not explicitly find that was the cause of the claimant's degenerative condition. Rather, the ALJ was simply unpersuaded by the evidence that it was attributable to the claimant's employment conditions.
The party asserting error has the burden to present a record sufficient to prove the error. Because the claimant did not designate the hearing transcript as part of the record on review we must presume the ALJ's findings of fact are supported by substantial evidence. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). In any case, the ALJ implicitly found the opinions of Dr. Sparr more persuasive than the opinions of Dr. McCurry concerning the work-relatedness of the DJD, and there is substantial evidence in Dr. Sparr's medical records to support the ALJ's pertinent findings. Therefore, the ALJ's finding must be upheld on review. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
Finally, because the ALJ found the claimant failed to prove that the underlying DJD was caused by the employment, the undisputed fact that the November 2002 aggravation was not work-related supports the conclusion the claimant failed to establish a prima facie case. Therefore, the burden of proof never shifted to the respondents and it is immaterial whether the respondents proved the claimant's DJD was caused by her size and weight.
IT IS THEREFORE ORDERED that the ALJ's order dated October 23, 2003, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on March 18, 2004 by A. Hurtado.
Mary L. Graser, 345 J St., Penrose, CO 81240
Alissa Hall, United Parcel Service, Inc., 5020 Ivy St., Commerce City, CO 80022
Sandi Goldberg, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)