Opinion
W.C. No. 4-836-511.
November 10, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated May 18, 2011, that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The following facts are taken from the record and from the ALJ's findings of fact. On August 17, 2010, the claimant began work for the employer as a facility technician. The employer is a hazardous waste storage facility and also receives non-hazardous wastewater. The water is moved by three-inch diameter hoses through a filter and into holding tanks. The hose from a truck attaches to the filter about six feet off the ground. The hose from the filter to the holding tank attaches at approximately knee level. Water remaining in the hose is drained into five gallon buckets that are then emptied into the top of the holding tanks. The wastewater is loaded onto the tanker trucks directly from the holding tanks without attachment to the filter. Hazardous material is stored in 55 gallon drums. The claimant was responsible for helping to assist in unloading the drums by positioning them on the back of a truck so that they could be moved with a forklift.
The claimant's first day of work for employer was on August 17, 2010, and he performed no physical labor except for pouring off the contents of two buckets. He made no overhead hose connections and moved no hoses. Rather, the claimant read training materials and observed the plant manager make the hose connections and go through the steps of receiving the water from tanker trucks. At approximately 1:00 or 1:30 p.m. on August 17, the claimant rubbed his shoulder and the plant manager asked the claimant if he were okay. The claimant stated that he had had a pinch in his neck for a while.
The claimant resided with the plant manager on the nights of August 17-19, 2010. On August 18, which was the claimant's second day of work, the plant manager performed most of the work so that the claimant could watch. The claimant did not report any neck pain. On August 19, 2010, the claimant performed the work of connecting the hoses and operating the valves while the plant manager observed. On either August 18 or August 19, the claimant moved one 55 gallon drum approximately four or five feet on the back of a truck with the use of a drum dolly. The claimant reported no neck pain, although he did comment to a co-worker that he had suffered previous low back pain. On August 20, the claimant received tanker loads of wastewater on four occasions. The claimant did not report any neck pain or injury. After work on August 20, the claimant drove to his sister's house in Colorado Springs where he had resided. The claimant alleged that he suffered neck pain on the drive, and that it was hard for him to turn his head while driving. The claimant went straight to bed and claimed that the neck pain was so severe over the weekend, that on August 23, he sought medical care.
The claimant received treatment from Dr. Abercrombie on August 23, who opined that the claimant's neck condition was due to work. Dr. Abercrombie excused the claimant from work for one week and then imposed restrictions for his return to work. On the evening of August 23, the claimant sought care at Penrose Hospital's emergency room. On August 27, an MRI was performed on the claimant, and it showed that the claimant was suffering from moderate degenerative changes at C5-6 with C6 nerve root compression.
On September 21, 2010, a physician's assistant examined the claimant, who reported that he suffered minor neck pain after his first day of work, but suffered excruciating neck pain by August 20. The physician's assistant and a physician concluded that the claimant suffered a clear work injury. Exhibit 8.
Subsequently, Dr. Scott performed an independent medical examination for the respondents. Dr. Scott opined that if the claimant were deconditioned, then any type of activity might make him a little bit sore. Scott Depo. at 23-24. Based on his review of the claimant's MRI, Dr. Scott opined that the claimant has an underlying chronic degenerative arthritic condition in his neck. Scott Depo. at 25. The claimant reported to Dr. Scott that he first started having soreness and pain in his neck and was sore throughout his whole body after his first day on the job, and after his second day at work, his soreness over the whole body increased. The claimant reported to Dr. Scott that on the third day of work, he was sore all day, and that he had soreness which localized on the right side of his neck and right shoulder. The claimant reported to Dr. Scott that on August 20, he was having neck pain when he went to bed, with pain localized in the right lateral neck, which radiated into his right shoulder and biceps. Scott Depo. at 22-23, 25-26. The claimant reported awakening with severe pain on August 21, and Dr. Scott opined that the claimant probably suffered the aggravation of his condition due to the way he slept. Scott Depo. at 29-31. Dr. Scott specifically opined that since there was no evidence of a high-velocity cervical neck flexion/extension injury, it was his opinion that the claimant had an abnormal positioning of his neck from a night of sleep and awoke with acute pain in his neck. Scott Depo. at 31. Dr. Scott further opined that the claimant's work for the employer did not cause or aggravate the claimant's cervical spine degenerative disc disease. Scott Depo. at 42; Exhibit E at 27, Response to Question #3.
A hearing was held on March 29, 2011, and a continuation of the hearing testimony took place on April 15, 2011. During the hearing, the claimant testified that prior to August 17, 2010, he never had any physical therapy or any type of treatment for his neck. Tr. (3/29/11) at 17. The claimant further testified that when he showed up for the job on August 17, he did not have any ongoing neck problems, and he does not recall having any conversation with his plant manager wherein he stated that he had an ongoing neck problem. Tr. (3/29/11) at 21; Tr. (4/15/11) at 71-72. The claimant testified that when he got off work on August 20, his neck started to hurt very badly and that he spent August 20 to August 22 in bed. He explained that he really had not worked any physical job for some time, so he felt as though the pain he was experiencing was due to his not having done any physical labor for some time. Tr. (3/29/11) at 21-22.
The plant manager for the employer testified that on August 17, the claimant informed him that he had a pinch in his neck and that it had been bothering him for a while. Tr. (4/15/11) at 24, 42-43, 54-55. The plant manager also testified that on August 18, he did not observe the claimant having any neck pain, he did not observe the claimant having any pain behaviors, and the claimant did not mention any neck pain. Tr. (4/15/11) at 26. The manager further testified that on August 20, he saw the claimant after he came back from unloading. He testified that the claimant did not make any comments about neck pain, and he did not observe any problems or symptoms or pain behaviors regarding his neck. Tr. (4/15/11) at 30-31. The plant manager also testified that the claimant did not report any physical problems when he came back from each load on August 20. Tr. (4/15/11) at 52. In fact, the manager testified that he did not observe any pain behaviors throughout the week. Tr. (4/25/11) at 50-51. The plant manager also testified that a few months before the claimant started work, they had a discussion where the claimant said he had injured his lower back while putting a deck in at his sister's house. Tr. (4/15/11) at 41.
The claimant's sister also testified for the hearing. The sister testified that she previously observed the claimant fall down the steps inside her house. Tr. (4/15/11) at 66. The sister also testified that prior to August 16, she was not aware of the claimant having any neck problems. Tr. (4/15/11) at 67.
On May 18, 2011, the ALJ entered his findings of fact, conclusions of law, and order. In his order, the ALJ found that the claimant suffered no acute accidental injury. In his order, the ALJ stated that "[i]t is possible, but not probable, that claimant was so deconditioned that the minimal physical activities he performed at work for the employer for four days aggravated an asymptomatic preexisting cervical spine degenerative disk disease and then required treatment of that condition." Findings of Fact at 5 ¶ 22, ¶ 23. The ALJ found the testimony of the plant manager more credible and persuasive than the claimant's testimony, however, regarding the minimal activities that the claimant performed on his four days of work. The ALJ found that the claimant only made approximately two to four overhead hose connections during the entire week of work, and that he moved only one drum a few feet. The ALJ found that the claimant carried several five-gallon buckets of wastewater, but dumped them at knee-height. The ALJ also found that "[i]t is possible that the work activities, if performed repetitively, might aggravate claimant's cervical spine condition and constitute an occupational disease." Findings of Fact at 5 ¶ 23. The ALJ found, however, that the claimant did not perform his duties repetitively and "barely performed them at all." Findings of Fact at 5 ¶ 23. Thus, the ALJ concluded that the claimant failed to prove by a preponderance of the evidence that he suffered an occupational disease in the form of aggravation of his preexisting cervical spine degenerative disc disease. The ALJ also found that Dr. Abercrombie and the physician assistant received inaccurate histories from the claimant, and their causation opinions were not persuasive. The ALJ, therefore, denied and dismissed the claimant's claim for workers' compensation benefits.
On review, the claimant argues that the ALJ erred, as a matter of law, in denying the compensability of his occupational disease claim, or in denying his claim for injury arising out of the course and scope of his employment. The claimant argues that he had the onset of symptoms and signs before his alleged abnormal positioning of his neck from a night of sleep. The claimant also argues that the ALJ supported his determination with the opinions of Dr. Scott, whose testimony is inconsistent with the definition of occupational disease under Colorado's Workers' Compensation Act (Act). Without citing to the particular page in Dr. Scott's deposition, the claimant argues that "Dr. Scott in his Deposition indicated a distinct misunderstanding of the nature of an occupational disease claim under Colorado law focusing primarily on the requirement for a traumatic event." Claimant's Brief at 5 ¶ 29; Claimant's Brief at 4 ¶ 17. The claimant further argues that the ALJ's order is not supported by the evidence. We perceive no error in the ALJ's order.
A claimant has the burden to prove that his injury or occupational disease was proximately caused by an injury arising out of and in the course of employment. Section 8-41-301(1)(b) and (c), C.R.S.; City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). In the context of workers' compensation, the term injury encompasses both accidental injuries and occupational diseases. Section 8-40-201(2), (14), C.R.S.; CF I Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo. App. 1982). An "accidental injury" is traceable to a particular time, place, and cause. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993). In contrast, an occupational disease is an injury which results directly from the employment or conditions under which 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. Section 8-40-201(2), (14), C.R.S.; Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991).
Whether the claimant has met his burden of proof is a factual question for resolution by the ALJ, and his factual findings must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
Moreover, 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).
Here, we conclude that the ALJ did not err, as a matter of law, in ruling that the claimant failed to prove by a preponderance of the evidence that he suffered an occupational disease in the form of aggravation of his preexisting cervical spine degenerative disc disease. Despite the claimant's argument to the contrary, we do not view Dr. Scott's opinions or his deposition testimony as misunderstanding the nature of an occupational disease or focusing primarily on the requirement for a traumatic event. In fact, the claimant fails to cite to any page in either his deposition or his medical report where Dr. Scott relies upon such a misunderstanding or focuses on the requirement for a traumatic event. Similarly, we read nothing in the order which demonstrates that the ALJ mistakenly ruled that the law governing compensability requires a claimant to have suffered trauma. Rather, the ALJ cited to the correct law and definitions governing compensability, and the order demonstrates that his analysis of the compensability of the claimant's claim used this law and these definitions under the Act. See Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003) (ALJ presumed to have considered relevant legal principles when entering an order). In particular, the ALJ cited to § 8-41-301(1), C.R.S., concluding that the claimant must prove that he is a covered employee who suffered an injury arising out of and in the course of employment. Conclusions of Law at 5 ¶ 1. The ALJ also concluded that if an industrial injury aggravates, accelerates, or combines with a preexisting condition so as to produce disability and a need for treatment, the claim is compensable. Conclusions of Law at 5 ¶ 1. Moreover, in his order, the ALJ cited to § 8-40-201(14), and he found that the claimant did not perform his work activities repetitively and "barely performed them at all." Using these definitions and this law, the ALJ denied and dismissed the claimant's claim for compensation. Order at 6 ¶ 1.
Further, there is substantial evidence supporting the ALJ's ruling that the claimant failed to prove by a preponderance of the evidence that he suffered an occupational disease in the form of aggravation of his preexisting cervical spine degenerative disc disease. Section 8-43-301(8), C.R.S. As noted above, the ALJ expressly credited Dr. Scott's opinions that it is more likely that the claimant awoke with the severe neck pain due to positioning during his sleep. The ALJ further found that the claimant did not perform any work activities repetitively and "barely performed them at all." The ALJ also found that the claimant failed to demonstrate how his limited work activities caused or aggravated his cervical degenerative disc disease, and that the claimant admitted he had suffered preexisting neck symptoms.
Moreover, to the extent the claimant argues that the ALJ failed to explain or document the incorrect information or histories that the claimant gave to the physician assistant or to Dr. Abercrombie, we again perceive no error. Contrary to the claimant's argument, the ALJ is not required to make findings concerning every piece of evidence or to explicitly address every theory which the ALJ finds to be unpersuasive. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Rather, the weight and credibility to be afforded expert medical opinion is a matter within the sole discretion of the finder of fact. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). We may not substitute our judgment by reweighing the evidence in an attempt to reach a result that is different from that of the ALJ. See Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result). The ALJ weighed the conflicting medical evidence and credited the opinions of Dr. Scott. Id. Given the ALJ's consideration of the evidence, we therefore may not disturb the ALJ's order that the claimant failed to establish by a preponderance of the evidence that his claim was compensable.
IT IS THEREFORE ORDERED that the ALJ's order dated May 18, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Kris Sanko
GARY L. KRUEGER, 3625 ARBORVIEW CT., COLORADO SPRINGS, CO, 80918 (Claimant).
ARVADA TREATMENT CENTER, LLC, Attn: JIM BRADISH, 616 WEST MONUMENT, COLORADO SPRINGS, CO, 80905 (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., 7501 E. LOWRY BLVD., DENVER, CO, 80230 (Insurer).
STEVEN U. MULLENS, P.C., Attn: ROBERT TURNER, ESQ., 105 EAST MORENO AVENUE, COLORADO SPRINGS, CO, 80901 (For Claimant).
RITSEMA LYON PC, Attn: DAWN M. YAGER, ESQ., 999 18TH STREET, SUITE 3100, DENVER, CO, 80202 (For Respondents).