Opinion
W.C. No. 4-742-273.
April 2, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated August 8, 2008 that denied and dismissed her claim after finding that the claimant failed to establish a compensable injury. We affirm the ALJ's determination that the claimant failed to establish that she sustained a compensable injury or occupational disease. However, we are unable to ascertain the basis for the ALJ's denial of medical benefits. We therefore set aside the denial of medical benefits and remand this matter for additional findings and a new determination regarding whether the claimant has any entitlement to medical benefits.
This matter proceeded to hearing on the issues of compensability and medical benefits. The ALJ's findings of fact are summarized as follows. The claimant reported an injury to her left ankle on June 21, 2007. The claimant worked in a warehouse and her left foot started to hurt as she was walking in the warehouse. However, no specific incident caused the onset of the claimant's symptoms. The claimant's treating physician did not trace any work injury to a specific time, place or event, and had difficulty identifying a cause for the claimant's complaints. Dr. Aschberger testified as a medical expert in physical medicine, rehabilitation, and cumulative trauma diagnosis and treatment. Dr. Aschberger stated that additional testing would be needed before a diagnosis could be made as to whether the claimant had a disease. However, he opined that there was no cumulative trauma or disease and he saw no support for a preexisting condition that affected the claimant's feet. There was no credible evidence that the claimant probably has a work-related disease. The ALJ concluded that the claimant failed to establish a compensable injury or occupational disease and denied her corresponding claim for benefits.
The claimant challenges the standards that the ALJ applied to determine whether the claimant sustained a compensable injury. As noted by the claimant, she bore the burden to establish a compensable injury. To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her injury arose out of and in the course of her employment. Section 8-43-301(1)(c), C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a "contested fact is more probable than its nonexistence." Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. In resolving this issue the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). To the contrary, the ALJ is only required to enter findings on the evidence she found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant argues that the ALJ imposed overly restrictive requirements to establish a compensable injury. The ALJ stated in her decision that a compensable injury "is traceable `to a particular time, place and cause.'" In determining that the claimant failed to prove a compensable injury, the ALJ also observed that symptoms at work do not compel the determination that the claimant's underlying condition was proximately caused by her employment. She further noted that no specific incident occurred at the claimant's work. Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 5, citing Colorado Fuel Iron Corp. v. Industrial Comm'n, 154 Colo. 240, 392 P.2d 174 (1964). The ALJ's reference from Colorado Fuel Iron to "a particular time, place and cause" had been discussed by the supreme court in the context of distinguishing between accidents covered under the Workers' Compensation Act, as opposed to occupational diseases covered by the Occupational Disease Disability Act. Colorado Fuel Iron Corp., 154 Colo. 240, 245-46, 392 P.2d 174, 177-78. See also, Campbell v. IBM Corp., 867 P.2d 77, 81 (Colo.App. 1993) (concluding worker sustained occupational, rather than accidental, injury for purpose of determining average weekly wage). An "accidental injury" as it were, "had to be traceable to a definite cause, time and place," but this could established by a "causal connection between the type of work, the date the pain began, and the place of employment," such as where a worker with no history of back trouble experienced pain after performing heavy lifting. Martin Marietta Corp. v. Faulk, 158 Colo. 441, 443-45, 407 P.2d 348, 349 (1965).
The claimant contends that the ALJ required her to identify the exact time, place, and extent of her injury and asserts that she provided evidence sufficient to trace her injury to "a definite cause, time and place" as contemplated by Colorado Fuel and Iron Corp. In support of this contention, the claimant refers to her testimony, as well as to medical evidence from her treating physician.
As we read the ALJ's decision, she gave due consideration to whether the claimant sustained a compensable injury under the circumstances, either in the nature of an accident or an occupational disease. See § 8-40-201(2), C.R.S. 2008 ("t[a]ccident,' `injury,' . . . includes disability . . . resulting from accident or occupational disease. . . .) The ALJ made multiple findings of fact to the effect that the claimant's injury was not traced to a particular time, place or event, based upon the claimant's testimony and medical evidence. Order at 2-3, ¶¶ 2, 4-5. In addition, the ALJ noted that Dr. Aschberger testified there was no work-related cause for the claimant's injury and he was, therefore, of the opinion that the claimant did not sustain a work injury. Order at 2, ¶ 4. It is apparent from her analysis that the ALJ considered not only the time and place pertaining to the claimant's condition, but whether the claimant's symptoms had any causal connection to her work. The claimant's reference to other evidence which, if credited, might permit a contrary result affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
A claimant can sustain a compensable injury without a specific traumatic incident based on the aggravation of a preexisting condition. See, e.g., Everett v. Professional Auto Body Frame, W.C. No. 4-290-728 (June 24, 1997) (denying claim due to lack of either specific traumatic incident or substantial permanent aggravation of preexisting condition). However, the claimant expressly asserts that her claim is not based upon the aggravation of any preexisting condition.
A claimant may also suffer a compensable injury in the nature of an occupational disease. The ALJ considered whether the claimant sustained an occupational injury. The distinction between an "occupational disease" and an "accidental injury" is that an "accidental injury" is the result of an event which is traceable to a particular time, place and cause. Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964). In contrast, an "occupational disease" is acquired in the ordinary course of employment and is a natural incident of the employment. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993).
Section 8-40-201(14), C.R.S. 2008 defines an occupational disease as follows:
`Occupational disease' means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Comm'n, 736 P.2d 1262 (Colo.App. 1986). Under § 8-40-201(14), C.R.S. 2008 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated to some reasonable degree the disability for which compensation is sought. Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993).
The claimant asserts that the ALJ applied the wrong standards for determining whether she sustained an occupational injury. According to the claimant, the ALJ applied in error the special hazards doctrine, as evidenced by the ALJ's reference to "the hazards of employment" when discussing Anderson v. Brinkhoff. However, the ALJ referred to "hazards of employment" in express reference to the statutory definition of an occupational disease and the case of Anderson v. Brinkhoff. Cf National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992) (where precipitating cause of injury is a pre-existing condition the injury is not compensable unless a "special hazard" of employment combines with pre-existing condition to cause or increase the degree of injury); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989) (to be considered an employment hazard for this purpose, employment condition must not be ubiquitous; it must be a special hazard not generally encountered); Gates Rubber Co. v. Industrial Comm'n, 705 P.2d 6 (Colo.App. 1985) (hard level concrete floor not special hazard because it is a condition found in many non-employment locations). In our view, the ALJ correctly applied the law pertaining to occupational diseases.
Furthermore, we also find no error in the ALJ's determination that the claimant did not establish that she suffered from an occupational disease. On review the issue is whether the ALJ's findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we are required to defer to the ALJ's resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Further, we particularly note that credibility was an important issue in this case and we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000) .
The claimant refers to evidence in the record that, arguably, could support a finding that she had an occupational disease. However, the nature and scope of our review is controlled by § 8-43-301(8), C.R.S. 2008. That statute provides that the Panel may correct, set aside, or remand the ALJ's order, but only on the grounds that the findings of fact are not sufficient to permit review, that conflicts in the evidence are not resolved, that the findings of fact are not supported by the evidence, that the findings of fact do not support the order, or that the order is not supported by the applicable law. Under the statutory constraints to our review function, we have no authority to reweigh the facts with a view toward drawing inferences different from those reached by the ALJ. Scchrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
The ALJ credited the opinions of Dr. Aschberger in determining that the claimant failed to show that she suffered from a compensable occupational disease. There is record support for the ALJ's corresponding findings. For example, Dr. Aschberger testified to the effect that he saw no history and heard no testimony tracing the claimant's work exposure to her condition. Tr. at 118-20, 123, 131.
The claimant also asserts that the ALJ erred by not expressly considering in her findings and conclusions the claimant's request for payment of medical expenses. It appears from the record that the payment of several specific medical bills was added as an issue at the commencement of the hearing. Tr. at 5-7. The respondents took the position that the claimant's medical bills were not related to her work. Tr. at 10, 24-26. The parties argued in their respective position statements as to whether the medical bills were related to a compensable claim. However, it appears from the record that the claimant also requested payment of, at least, some of her medical expenses on the basis that they were effectively authorized by the respondents. In her position statement, the claimant requested payment of outstanding medical bills "regardless of the outcome of this hearing." Claimant's Closing Statement at 12. Furthermore, at the hearing the respondents' counsel referred to the related issues of whether the medical benefits sought by the claimant were reasonable and necessary and authorized. Later the respondents' counsel indicated that the claimant sought treatment outside of the chain of referral. Tr. at 24. During the course of the hearing, the claimant testified about treatment by her treating physician and corresponding referrals to other physicians and for an MRI, which was not paid. Tr. at 42-43. Thus, the claimant placed at issue the payment of certain medical expenses regardless of the compensability of her claim and the ALJ did not rule on that issue.
We therefore conclude that the ALJ's factual findings were insufficient to permit appellate review of the issue of whether the claimant was entitled to payment of any medical expenses by the respondents. See § 8-43-301(8), C.R.S. 2008 (panel may set aside or remand order where findings of fact not sufficient to permit appellate review). Accordingly, we set aside the order insofar as it denied in summary fashion the payment of medical benefits and remand for further findings on that issue. We affirm the order in all other respects.
IT IS THEREFORE ORDERED that the ALJ's order dated August 8, 2008 is affirmed as to the denial of the compensability of the claim, set aside the denial of all medical benefits and remand the matter for additional findings as to the claimant's entitlement, if any, to payment of medical expenses by the respondents.
INDUSTRIAL CLAIM APPEALS PANEL ______________________________John D. Baird
______________________________Thomas Schrant ANGIE SHELDON, LOVELAND, CO, (Claimant).
ACCESS COMPUTER PRODUCTS, INC., LOVELAND, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
STEWART LAW OFFICES, PC, Attn: TRACY STEWART, ESQ., FORT COLLINS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: KATHERINE H.R. MACKEY, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: JAMES MYSZA, DENVER, CO, (Other Party).