Opinion
W.C. Nos. 4-218-109, 4-186-857
May 14, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined that the claimant suffered a compensable injury and awarded temporary disability and medical benefits. We affirm.
The claimant worked for the respondent until September 30, 1993, when she underwent surgery on her left foot. She subsequently filed a workers' compensation claim alleging injuries to both feet.
Crediting the claimant's testimony, the ALJ found that the claimant's regular job duties included pushing heavy carts weighing as much as 500 pounds, reaching into the carts by standing on her toes, and pushing heavy boxes on a rail. The ALJ also found that the claimant's job required her to stand on her feet for long periods of time and to climb stairs. The ALJ concluded that these activities caused the claimant to suffer bilateral foot injuries. Specifically, the ALJ found that the claimant sustained an Achilles tendon tear of her left ankle, which gradually worsened and resulted in the bilateral foot problems. Therefore, the ALJ determined that the claimant suffered a compensable occupational disease on July 1, 1993, and ordered the respondent to provide medical benefits to cure or relieve the effects of the injuries. Further, the ALJ ordered the respondent to pay temporary disability benefits commencing September 30, 1993.
On review, the respondents contend that the record does not support the ALJ's determination that the claimant suffered a compensable occupational disease. We disagree.
To prove the existence of an occupational disease, the claimant is required to present evidence which establishes that the disease resulted directly from the conditions under which she performed her employment, and that her condition "can be fairly traced to the employment as a proximate cause," and does not come from hazards to which she would have been "equally exposed outside of employment." Section 8-40-201(14), C.R.S. 1997; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). In Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that where the occupational exposure is not a "necessary precondition" to the development of the disease, the claimant sustains an occupational disease only to the extent that the conditions of the employment aggravate, accelerate or intensify the disability for which benefits are sought. Thus, where there is more than one cause of the claimant's disease, Anderson v. Brinkhoff, supra, allows an apportionment of liability between the occupational and nonoccupational causes.
As argued by respondent, the claimant has the burden to prove a causal connection between the employment and her disability. Anderson v. Brinkhoff, supra. Whether the claimant has sustained that burden is a question of fact for the ALJ. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). Consequently, we must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The respondent contends that the claimant's right Achilles tendon problems did not arise until after September 30, 1993. Therefore, the respondent argues that the claimant's condition is the result of her subsequent activities as a housewife and mother, and not the duties of her employment. We reject this argument.
Dr. Hineser diagnosed the claimant with Achilles tendinitis/bursitis and tarsal tunnel syndrome, related to her "physically stressful job." (Hineser, August 30, 1996). Dr. Hineser opined that the claimant has had bilateral foot problems since at least 1991, with a gradual onset. In so doing, Dr. Hineser explicitly rejected the theory that the claimant's bilateral foot problems were caused by any non-occupational factor. To the contrary, Dr. Hineser opined that to relate the claimant's injuries to a non-industrial cause is to "deny the facts and an attempt to obscure them with irrelevant data." (Hineser, March 1, 1997).
The ALJ expressly credited Dr. Hineser's opinions. (Finding of Fact 8). Furthermore, Dr. Hineser's opinions support the ALJ's implicit determination that the respondents failed to sustain their burden to that the claimant's bilateral foot injuries were caused by non-occupational factors. See Anderson v. Brinkhoff, supra.
The respondent also contends that there is not substantial evidence to support the ALJ's factual determinations concerning the claimant's job duties. Again we disagree.
Contrary to the respondent's argument, the ALJ did not find that the claimant's injury was caused by the claimant's employment activities between July and September 1993. Instead, the ALJ found that the injury had a gradual onset and that the claimant was exposed the occupational hazards of her foot problems for a period of six years before July 1, 1993. Accordingly, evidence that the claimant did not push heavy carts between July and September 1996 did not preclude the ALJ from finding that the claimant's condition was caused from pushing heavy carts at work.
We also reject the respondent's assertion of reversible error in the ALJ's finding that the claimant's job duties required climbing "ladders." Admittedly, the claimant denied "climbing ladders" at work. However, the claimant testified that she had to climb 250 to 300 stairs a day to get from her work station to the employer's locker room. (Tr. p. 6). The ALJ expressly credited the claimant's testimony that her job required "climbing flights of stairs." (Finding of Fact 15). Further, the ALJ expressly found that the claimant's job required her to "frequently climb stairs." (Finding of Fact 3). Therefore, insofar as the ALJ purportedly credited Dr. Hollingshead's opinion that the claimant's condition is attributable "climbing ladders and steps" (emphasis added), the error is harmless and will be disregarded. Section 8-43-310 C.R.S. 1997; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
Moreover, the fact that the claimant's actual job assignment did not require her to climb stairs is immaterial. The claimant's testimony supports the conclusion that the conditions under which she performed her regular job duties required her to climb stairs. Therefore, the ALJ could reasonably infer that the claimant's employment required her to climb stairs.
IT IS THEREFORE ORDERED that the ALJ's order dated October 1, 1997, 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. 1997.
Copies of this decision were mailed May 14, 1998 to the following parties:
Reyes Ramirez, 414 Pleasant, Ft. Morgan, CO 80701
Deb Carlock, Excel Corp., C.S. 4100, Ft. Morgan, CO 80701
Suzan Hassebrook, Crawford Co., 7000 S. Yosemite St., Ste. 150, Englewood, CO 80112-2016
Allen J. Kincaid, Esq. Jennifer W. Gruidel, Esq., 6312 S. Fiddlers Green Cr., #270N, Englewood, CO 80111 (For the Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
BY: _______________________