Opinion
W.C. No. 4-826-721.
June 17, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated February 14, 2011 that allowed the respondent insurer to withdraw its admissions of liability and denied the claimant additional compensation and benefits. We affirm.
This matter proceeded to hearing to determine whether the claimant sustained a compensable injury on May 29, 2010. The respondents sought to withdraw their general and final admissions of liability on the ground that the claimant's un-witnessed fall was not compensable. Several of the ALJ's findings of fact are summarized as follows. The claimant worked as a certified nursing assistant. On May 29, 2010 the claimant went to use the restroom at a nurse's station. The claimant alleged he hurt his right ankle, knee, and leg because he slipped on water on the restroom floor while approaching the sink. After being told the claimant slipped in the bathroom because of a slippery floor the claimant's supervisor inspected the bathroom floor. She found a few drops of water, but her feet did not reach the water droplets when she stood at the sink. The supervisor, who is a registered nurse, examined the claimant's right ankle and foot. She found no swelling, but the claimant's right ankle was painful when touched. The claimant completed a patient information form and stated that he approached the sink and his right leg slipped. The claimant indicated that the floor was wet and soapy. A nurse practitioner stated that the mechanism and timing of injury were difficult to correlate to the significant atrophy and foot drop present in her examination of the claimant. A medical doctor examined the claimant and noted significant atrophy of the claimant's right leg and some nerve abnormalities. The claimant advised the doctor that he had a previous right knee injury in 1984 and had weakness in his right leg since then. The respondents filed a general admission of liability for medical and temporary total disability benefits and later filed a final admission of liability on June 29, 2010.
Dr. Wunder examined the claimant and found that with his foot-drop and lack of peroneal muscle activation, the claimant was often prone to invert his ankle. The claimant had profound difficulties with his right lower extremity for a prolonged period of time. Dr. Wunder suspected that the claimant's right ankle sprain resulted from the claimant inverting his right ankle, rather than from slipping on water. Dr. Wunder identified a meniscal tear in the claimant's knee, but opined that the May 29th incident was not likely to have caused the tear. Dr. Wunder testified that the claimant's ankle probably inverted due to peroneal neuropathy and caused the claimant to slip at work. Dr. Hughes agreed with Dr. Wunder and another doctor that the claimant had pre-existing peroneal neuropathy and muscular atrophy that did not result from the May 29th incident.
The ALJ was persuaded that the claimant's slip and fall on May 29, 2010 was not because of water on the floor, but because of his pre-existing peroneal neuropathy and muscular atrophy of the claimant's right lower extremity. The ALJ therefore determined that the claimant had not sustained a compensable injury and allowed the respondent insurer to withdraw its admissions of liability.
The claimant is unrepresented in his appeal and provides extensive commentary as to the circumstances surrounding the May 29th incident and his medical condition. Our review is restricted to the record before the ALJ and factual assertions made on appeal may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo. App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988). Furthermore, we must presume the ALJ's findings are supported by the evidence where, as here, no transcript has been designated. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).
We are persuaded that the ALJ correctly applied the law to the facts as he found them. If a pre-existing condition is the precipitating cause of an injury that occurs in the workplace, "the resulting disability is compensable if the conditions or circumstances of employment have contributed to the accident or to the injuries sustained by the employee." National Health Labs. v. Industrial Claim Appeals Office, 844 P.2d 1259, 1260-61 (Colo. App. 1992) (holding that a worker's epileptic seizure while driving was compensable where the worker was required to operate automobile in the course and scope of her employment because "vehicular travel constitutes a special hazard"). Under this special hazard rule, a worker may be compensated if a pre-existing injury, infirmity, or disease is exacerbated by "the concurrence of a pre-existing weakness and a hazard of employment." Gates Rubber Co. v. Indus. Comm `n, 705 P.2d 6, 7 (Colo. App. 1985). However, the ALJ was persuaded that the claimant's fall was due to the claimant's preexisting health condition and that there was no special hazard at work that contributed to the claimant's accident or injuries.
Therefore, there is no basis on which to disturb the ALJ's decision. See Section 8-43-301(8), C.R.S. (Panel may only set aside order where findings are not sufficient to permit appellate review, where conflicts in the evidence are not resolved, where findings are not supported by substantial evidence, where findings do not support the order, or where the order is not supported by applicable law).
IT IS THEREFORE ORDERED that the ALJ's order dated February 14, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
HOWARD HUSBAND, #405B, DENVER, CO, (Claimant).
SSC DENVER SOUTH MONACO OPERATING COMPANY, C/O: SSC ADMIN SERV, LLC, HOUSTON, TX, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: KIM VAN/EVELYN BONHAM, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
CLIFTON, MUELLER BOVARNICK, PC. ., Attn: RICHARD A. BOVARNICK, ESQ., DENVER, CO, (For Respondents).