Opinion
W.C. No. 4-702-815.
January 25, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated September 27, 2007, that denied and dismissed the claimant's claim for compensation and benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. On September 19, 2006, the claimant fell down the stairs at the employer's facility while returning to his office after discussing a work matter with another employee. Dr. Janssen testified that the claimant had a long-standing cervical condition, which had caused problems with the claimant's walking before the fall. Dr. Janssen explained that the claimant's cervical myelopathy caused ataxia, or the inability to walk straight, which, in turn caused the claimant's fall down the stairs. The ALJ found the opinions of Dr. Janssen were credible and persuasive. The claimant probably suffered a lumbar disc herniation in the fall down the stairs. The claimant fell due to his cervical myelopathy and ataxia. The record evidence failed to demonstrate that the stairs at the employer's premises were a special hazard. The stairways were ubiquitous conditions, unlike scaffolding. The ALJ concluded that the preponderance of the evidence failed to demonstrate that the claimant suffered an injury arising out of and in the course of his employment with the employer. Therefore, the ALJ denied and dismissed the claim for compensation.
On appeal, the claimant contends that the ALJ erred because the stairs contributed to the extent of the injury. The claimant argues that had he not been walking down the stairs when he fell he would not have sustained the disc herniation of the lumbar spine.
If the direct cause of an employee's fall is a pre-existing idiopathic disease or condition, any resulting injuries caused by a special employment hazard are compensable. See Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). However, to be considered an employment hazard for this purpose, the employment condition must not be a ubiquitous one; it must be a special hazard not generally encountered. See Ramsdell v. Horn 781 P.2d 150 (Colo.App. 1989) (high scaffold constituted special employment hazard to worker who suffered epileptic seizure and fell); Gates Rubber Co. v. Industrial Commission, supra (hard level concrete floor not special hazard because it is a condition found in many non-employment locations). Contrary to the claimant's assertions, the fact that his fall occurred at work does not require a corresponding determination that his injury was the result of his employment. See Gates Rubber Co., 705 P.2d at 8 (Berman, J., dissenting) (asserting deceased worker's exposure to concrete surface resulting in fatal injury was direct consequence of decedent's employment duties).
Further, the claimant's reliance on Gaskins v. Golden Automotive Group, LLC W. C. No. 4-374-591(August 06, 1999), is misplaced. In Gaskins, the Panel stated that a "special hazard" of employment is one which contributes to the accident or to the extent of the injuries sustained. However, the Panel went on to note that a condition is not considered to be a special hazard of the employment if it is "ubiquitous." In Gaskins, as here, the claimant was injured when he fell down the stairs at work. In Gaskins, the ALJ found the injury occurred as a result of the claimant's preexisting condition, and because stairs are ubiquitous conditions, there was no special hazard of employment and denied the claim. The Panel affirmed. In our view, the ALJ's determination here is consistent with Gaskins.
The claimant also contends that the order of the ALJ is not supported by the facts. The claimant argues he testified he remembered having tripped over something causing his fall down the stairs and that Dr. Janssen's testimony was only that the claimant's preexisting condition "may" have caused the claimant to trip and fall. Because these issues are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant's assertion notwithstanding, Dr. Janssen's testimony fully supports the ALJ's findings and the conclusion that the claimant failed to carry the burden of proof. It is true that in his written report, Dr. Janssen expressed his opinion in cautious terms stating that the peripheral neuropathy was a "possibility for an etiology" for his fall but he thought it was very difficult to delineate and/or extrapolate. However, Dr. Janssen also stated in the same report that he thought the ataxia in the fall was most likely related to the underlying cervical stenosis. Exhibit E at 40. In his testimony, Dr. Janssen testified that it appeared that the most likely reason for the claimant's fall was his ataxia and unsteady gait, which was due to his long-standing myelopathy. Janssen Depo. at 26. To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). We perceive no error in the ALJ's crediting of Dr. Janssen's testimony in determining that the cervical myelopathy and ataxia caused the accident.
On September 22, 2006, the claimant gave a history of the September 19, 2006 accident and indicated that he did not remember how it happened. Exhibit H at 71. The ALJ noted in his order that when an employer representative completed an accident investigation the claimant was not sure why he fell and, also, that the claimant acknowledged at the hearing that he advised the representative he did not remember how he fell. Findings of Fact, Conclusions of Law, and Order at 5, ¶ 31. However, in approximately January 2007, the claimant suddenly remembered that he fell down the stairs on September 19, 2006 because he tripped. Findings of Fact, Conclusions of Law, and Order at 6, ¶ 34. In our opinion, there is substantial evidence in the record to support the ALJ's determination on the cause of the claimant's fall and the evidence recited by the claimant does not compel an alternative finding.
At any rate, the record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ's factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). IT IS THEREFORE ORDERED that the ALJ's order issued September 27, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
ROBERT WOOD, GRAND JUNCTION, CO (Claimant).
WESTERN SLOPE AUTO CO., Attn: JANICE PRICE, C/O: GPD GLOBAL, INC., GRAND JUNCTION, CO (Employer).
PINNACOL INSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO (Insurer).
GRIFF, LARSON, LAICH BRENNAN, P.C., Attn: LUKE A BRENNAN, ESQ., GRAND JUNCTION, CO (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO (For Respondents).
PINNACOL ASSURANCE, Attn: TAMERIA STUKES, DENVER, CO (Other Party).