Opinion
W.C. No. 4-654-034.
December 19, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated July 25, 2007, that denied the claimant's claim for death benefits on account of the death of her husband, who was the injured worker in this matter. We affirm.
A hearing was held on the sole issue of the claimant's entitlement to death benefits as a result of the death of her husband, who had previously sustained a compensable injury. Following the hearing, the ALJ entered factual findings that for the purposes of this order may be summarized as follows. John Fessler (the decedent) was working as an airline mechanic when he sustained a compensable knee injury on May 30, 2005. He died on October 14, 2005, as a result of bilateral pulmonary thromboemboli, which are commonly referred to as blood clots. Following the knee injury the employer referred the decedent to Dr. Erickson, who determined that although arthroscopic surgical repair might improve the decedent's condition, he was not a surgical candidate because of other factors, which included his obesity. Dr. Erickson determined that the decedent had reached maximum medical improvement and Dr. Gerber performed a Division-sponsored independent medical examination (DIME), which reported impairment of 40 percent of the lower extremity. After his death, Dr. Doberson performed an autopsy at the request of the claimant and stated that the decedent was morbidly obese, weighing 458 pounds at a height of 5 feet 8 inches. Dr. Doberson stated that the cause of death was massive bilateral pulmonary thromboemboli due to deep venous thrombosis of the right leg, and that contributing factors in the decedent's death were his obesity and his chronic debility or inability to move around due to the knee injury of May 2005. The ALJ rejected Dr. Doberson's opinion that the claimant's knee injury contributed to the decedent's death by restricting his movement and by accelerating the development of the fatal blood clots. The ALJ entered extensive factual findings crediting the evidence that the decedent's mobility was severely limited prior to the compensable accident and that he was incapable of performing his job because of his inability to "get around and perform his work because of his size." The decedent had received extensive medical treatment from his private physician both before and after his compensable accident, including treatment for swelling in his lower extremities and bilateral knee pain, somnolence, slurred speech, syncope, severe sleep apnea, congestive heart failure, and coronary pulmonale. The ALJ rejected Dr. Doberson's opinion that the decedent's knee injury was a significant causative factor in his death, finding instead that the decedent was severely and chronically debilitated prior to the time of his right knee injury. Accordingly, the ALJ concluded that there was an inadequate showing that the alleged immobility caused by the knee injury accelerated or otherwise contributed to the formation of blood clots from which the decedent suffered.
Based upon his factual findings, the ALJ concluded that the claimant had failed to show that the decedent's right knee injury was a significant causative factor in his death. Accordingly, the ALJ denied the claim for death benefits.
The claimant appealed and argues, first, that the ALJ erred in failing to credit those portions of Dr. Doberson's testimony that were unrebutted and, second, that the ALJ erred in placing the burden of proof on the claimant. We are unpersuaded that the ALJ erred and, therefore, we affirm the order.
Section 8-41-301(1)(c), C.R.S. 2007, provides that an injury is not compensable unless "proximately caused by an injury or occupational disease arising out of and in the course of employment. The element of proximate cause is met if an industrial injury leaves the body in a weakened condition, and the weakened condition is the proximate and natural cause of a further or subsequent injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). This principle has been referred to as the "chain of causation analysis," and provides that a subsequent injury is compensable if the weakened condition played a causative role in that subsequent injury. Jarosinski Industrial Claim Appeals Office, 62 P.3d 1080 (Colo.App. 2002). In general, once compensability is established, the respondents are liable for natural and proximate results of the injury. Standard Metals Corp. v. Ball, supra.
Generally, questions of causation are factual ones for resolution by the ALJ. Jarosinski Industrial Claim Appeals Office, supra.; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Because the issues are factual in nature, we must uphold the ALJ's resolution 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 Claims Office, 989 P.2d 251 (Colo.App. 1999). Thus, to the extent there are conflicting expert medical opinions, it is for the ALJ to determine the relative weight and credibility of the opinions. Rockwell International v. Turnbull, 802 P. 2d 1182 (Colo.App. 1990). Further, the ALJ is not obliged to credit the opinion of an expert even if it is undisputed and unrebutted. Cary v. Chevron U.S.A., Inc., 867 P. 2d 117 (Colo.App. 1993).
Here, the ALJ's factual findings are amply and substantially supported by evidence in the record. The ALJ entered extensive factual findings based in part upon the testimony of two of the decedent's previous supervisors that his mobility was severely limited prior to the compensable knee injury in 2005. Those witnesses, John Weakland and Alan Gosselin, testified that they personally observed the decedent prior to the date of his compensable knee injury and that he was severely limited in a variety of respects. See, e.g., Tr. at 43, 45, 61-62, 68-70. Additionally, the ALJ entered factual findings concerning the decedent's medical conditions that preexisted his compensable knee injury and that contributed to his chronic problems with mobility. The ALJ inferred from this evidentiary record that the decedent was "obviously and severely chronically debilitated" before he injured his knee. This inference was a reasonable one from the record and supports the ALJ's conclusion that the claimant failed to show that the decedent's death was proximately caused by the knee injury.
Nor do we discern any error in the ALJ's application of the legal standards. In our view the ALJ correctly concluded that the pertinent legal standard was whether the compensable injury was a "significant causative factor" in the decedent's death. See Subsequent Injury Fund v. Industrial Claim Appeals Office, 768 P.2d 751 (Colo.App. 1988); Tibbets v. Union Carbide Corporation, W.C. No. 3-109-015 (December 27, 1995); Helvey v. Bison Propane Bottle Exchange, W.C. No. 4-608-265 (July 15, 2005). Thus, the ALJ's findings are supported by the record and the order is consistent with applicable law.
It is certainly true that the record contains evidence, especially in the form of Dr. Doberson's opinions, that would have supported a factual finding that the decedent's compensable knee injury accelerated the formation of blood clots and the decedent's resulting death. As the claimant notes, Dr. Doberson did opine that despite the preexisting factors contributing to the decedent's death he would not have died on October 14, 2005 had he not injured his knee 17 months earlier. However, we disagree with the claimant's argument that the evidence compels that such a factual finding be entered. As is virtually always the case, it was the ALJ's duty to weigh the evidence and assess its probative value and the weight to be accorded Dr. Doberson's opinions was a matter for the ALJ. We cannot say the evidence cited by the claimant is so overwhelming that the ALJ was obliged to disregard the other evidence in the record from which contrary inferences could be drawn. And the claimant's point that some portions of Dr. Doberson's testimony were not specifically rebutted by contrary evidence does not compel the conclusion that the ALJ erred by not crediting those particular factual assertions. Rather, it is evident from the ALJ's order that he weighed the evidence and drew certain inferences from it, and whether Dr. Doberson's specific assertions were directly contradicted by specific contrary evidence does not affect the fact that the ALJ's inferences were reasonable ones from the record and that we are bound by them. Under these circumstances we are unpersuaded to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated July 25, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
JOHN FESSLER, Attn: KAREN FESSLER, NORTHGLENN, CO, (Claimant).
UNITED AIRLINES, Attn: DIA, DENVER, CO, (Employer).
GALLAGHER BASSETT SERVICES, INC., Attn: ALICE TROUTMAN, ENGLEWOOD, CO, (Insurer).
LAW OFFICES OF OTOOLE SBARBARO, P.C., Attn: JOHN A SBARBARO, ESQ., DENVER, CO, (For Claimant).
FLOYD M YOUNGBLOOD, P.C., Attn: FLOYD M YOUNGBLOOD, ESQ., WHEAT RIDGE, CO, (For Respondents).