Opinion
W.C. No. 4-225-334
April 7, 1998
FINAL ORDER
The claimant seeks review of an order of Chief Administrative Law Judge Felter (ALJ) which determined that the claimant did not sustain a compensable back injury, and therefore, denied a request for medical benefits. We affirm.
In January 1994, the claimant began experiencing problems with her upper extremities. The respondents admitted liability and provided medical treatment. During the course of treatment, the claimant complained of low back problems. The claimant testified that the back problems subsequently improved until she suffered a "jarring" injury to her back when she "misstepped" off the last rung of a pool ladder during physical therapy. Because the pool incident occurred during authorized treatment for the upper extremity injury the claimant argued that the back injury is a compensable component of the extremity claim under the "quasi-course of employment" doctrine.
At the close of the claimant's case, the respondents moved for a directed verdict on the grounds that the claimant failed to prove a causal connection between the upper extremity injury and her back problems. The ALJ agreed, and therefore, granted the respondents' motion for a directed verdict. In support, the ALJ found that the "claimant failed to produced any testimony, by report, in person or by deposition, from any physician" that her low back problems are related to the upper extremity injury. The ALJ also found that neither Dr. Klingbeil nor Dr. Aschberger found a causal connection between the claimant's low back problems and the upper extremity injury, including the incident during pool therapy. Further, the ALJ found that the claimant's testimony that the pool incident "permanently aggravated" her low back problems was unpersuasive.
I.
On review, the claimant first contends that the ALJ misconstrued the evidence and applied the wrong legal standard in finding that she failed to prove a causal connection between the upper extremity injury and her low back problems. In particular, the claimant contends that the ALJ erroneously failed to apply the "quasi-course of employment" doctrine. The claimant also contends that the ALJ erroneously required her prove that the pool incident caused a "permanent" aggravation of her pre-existing condition. We perceive no error.
A.
As argued by the claimant, a compensable injury may result from the "temporary" aggravation of a pre-existing condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); see also 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). Pain is a typical symptom caused by the aggravation of a pre-existing condition. However, an incident which merely elicits pain symptoms caused by a pre-existing condition does not compel a finding that the claimant sustained a compensable aggravation. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985); Barba v. RE 1J School District, W.C. No. 3-038-941 (June 28, 1991); Hoffman v. Climax Molybdenum Company, W.C. No. 3-850-024 (December 14, 1989). Rather, to receive medical benefits the claimant must establish to a reasonable probability that the need for additional medical treatment is proximately caused by the aggravation, and is not simply a direct and natural consequence of the pre-existing condition. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) cf. Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986).
To establish the requisite causal connection the claimant is not required to present medical evidence. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963). However, to the extent such evidence is presented it is the ALJ's sole prerogative to assess its sufficiency and probative value. Rockwell International v. Turnbull, supra. Furthermore, an expert medical opinion concerning causation must be based upon standard of reasonable medical probability. Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106 (1971).
Whether a claimant has sustained her burden of proof is a question of fact for resolution by the ALJ. See F. R. Orr Construction v. Rinta, supra. Consequently, we are bound by the ALJ's resolution of this issue if it is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Contrary to the claimant's argument, we do not believe the ALJ mischaracterized Dr. Aschberger's testimony. Dr. Aschberger opined that the claimant's low back problems are not related to the upper extremity injury. (Aschberger depo. Vol 1 p. 9). He also testified that he did not have sufficient information to form an opinion concerning a causal relationship between the pool incident and the claimant's low back problems. (Aschberger depo. Vol 1, p. 10). Accordingly, the ALJ could, and did, find that Dr. Aschberger was "unable to relate claimant's low back problems to her upper extremity injury" to a reasonable degree of medical probability.
Neither do we believe that the ALJ required the claimant to prove, as a condition of compensability, that the pool incident "permanently" aggravated her pre-existing condition. Rather, as we read the ALJ's order, he was not persuaded that the pool incident caused any "permanent" injury which accounted for the claimant's ongoing back pain and need for continuing back treatment. The ALJ merely considered the absence of permanent injury as some evidence that no aggravation occurred. In so finding, the ALJ was not required to explain the reasons for his determination that the claimant's testimony of a back injury during the pool therapy was not credible. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987).
In any case, the ALJ rejected the claimant's testimony that there was "any" causal connection between her low back problems and the upper extremity injury. Therefore, the ALJ's error, if any, concerning whether the claimant sustained a "permanent" aggravation from the pool incident was harmless. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded)
Admittedly, there is some evidence including the medical reports of Dr. Paddock, which, if credited, might support an inference that the claimant's low back problems are work-related. However, it is apparent that the ALJ did not consider this evidence to rise to the level of "reasonable medical probability." Therefore, we perceive no error in the ALJ's finding that the claimant presented no medical evidence supporting to a "reasonable degree of medical probability" that there is a causal relationship between her low back problems and the upper extremity injury.
We recognize that the record contains evidence that the claimant received low back treatment following the pool incident. However, the record also contains a history of back treatment before the pool incident. Furthermore, the claimant admitted that she had a prior back injury in 1991. (Tr. p. 43). She also testified that the pre-existing back condition had been "waxing and waning for sometime" before the pool incident. (Tr. p. 37). In addition, she stated that on occasion when her back symptoms subsided and she attempted to increase her activities, she would "backslide," and need additional chiropractic treatment. (Tr. p. 37). Therefore, the claimant's testimony supports the ALJ's finding that the claimant failed to prove a causal connection between the upper extremity injury and her need for low back treatment.
B.
Under the quasi-course of employment doctrine, authorized medical treatment for a work-related in injury is considered part of the injured worker's employment, because it would not be undertaken but for the industrial injury. Larson, Workers' Compensation Laws, § 13.11(d)(1997). Accordingly, the quasi-course of employment doctrine holds that injuries sustained in the course of obtaining authorized medical treatment are compensable as part of the original injury claim. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993); Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
Here, the ALJ rejected the claimant's evidence that the back treatment was necessitated by a "jarring" injury during pool therapy. Therefore, even if injuries sustained during pool therapy are incurred in the quasi-course of employment, the ALJ has found that the claimant's need for back treatment is not related to any injury during the pool therapy. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories he rejected); see also George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986) (ALJ is not held to crystalline standard in articulating findings). Consequently, application of the quasi course of employment doctrine does not compel the result sought by the claimant.
II.
Alternatively, the claimant contends that the ALJ erroneously granted a directed verdict. We disagree.
C.R.C.P. 41(b)(1) provides that, after a plaintiff in a civil action tried without a jury has completed the presentation of his evidence, the defendant may move for a dismissal on the grounds that the plaintiff has failed to present a prima facie case for relief. In determining whether to grant a motion to dismiss or directed verdict, the court is not required to view the evidence in the light most favorable to the plaintiff, as argued by the claimant. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966); Blea v. Deluxe/Current, Inc., W.C. Nos. 3-940-062 (June 18, 1997) (applying these principles to workers' compensation proceedings). Neither is the court required to "indulge in every reasonable inference that can be legitimately drawn from the evidence" in favor of the plaintiff. Rather, the test is whether judgment for the respondents is justified on the claimant's evidence. American National Bank v. First National Bank, 28 Colo. App. 486, 476 P.2d 304 (1970); Bruce v. Moffat County Youth Care Center, W.C. No. 4-311-203 (March 23, 1998).
Here, the ALJ rejected the claimant's testimony of a causal relationship between her low back problems and the upper extremity injury. Furthermore, the ALJ found that the medical evidence indicated a "possible" but not probable causal connection between the claimant's low back problems and the industrial injury. (Tr. pp. 54, 55); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Under these circumstances, the ALJ could reasonably infer that the claimant's evidence justified a judgment for the respondents.
III.
Lastly, we note that the respondents have filed a "Motion to Strike the Claimant's Reply Brief." We deny the motion and have considered the claimant's reply brief. However, the claimant's further arguments do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated July 22, 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 April 7, 1998 to the following parties:
Cheryl D. Witt, 6718 Gray Ct., Arvada, CO 80003
James J. Keil, Jr., Esq., Maurice F. Fox, Esq., 4465 Kipling St., Wheat Ridge, CO 80033
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Michael Goodman, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290 (For the Respondents)
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
BY: _______________________