Opinion
W.C. Nos. 4-237-047 4-423-132
October 23, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as the ALJ determined the claimant failed to prove a compensable injury on August 1, 1998, and therefore denied and dismissed the workers' compensation claim designated as W.C. No. 4-423-132. We affirm.
The claimant alleged a work-related neck injury on August 1, 1998, while installing an overhead door. Crediting the testimony of Dr. Shaw, the ALJ determined the claimant failed to prove the requisite causal connection between the employment and his symptoms. The ALJ found that the claimant's head and neck positioning, superimposed on his pre- existing degenerative condition, produced the symptoms the claimant experienced, and that the incident did not aggravate or accelerate his condition. In support, the ALJ found the claimant did not describe "anything unusual" or "unique" in the way he was positioned to install the overhead door. (Finding of Fact 6). The ALJ also found there was no evidence of "any circumstance, risk or condition of Claimant's work, differing from normal activities of daily living, that produced these symptoms." (Finding of Fact 11).
On review, the claimant contends that Findings of Fact 6 and 11 indicate the ALJ applied the wrong legal standard in failing to find a compensable injury. The claimant contends that a compensable injury may be the result of a worker's normal employment duties. Accordingly, the claimant contends the ALJ erroneously required him to prove the injury was the result of an "unusual" or "unique" job activity. We disagree.
Under the Workers' Compensation Act, the term "accident" refers to an "unexpected, unusual or undesigned occurrence." Section 8-40-201(1), C.R.S. 2001. The term "injury" refers to the effect or result of the accident. Section 8-40-201(2), C.R.S. 2001. A "compensable" injury is one which results in an injury requiring medical treatment or causing disability. The claimant must prove both an "accident" and an "injury" to recover workers' compensation benefits. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
Here, the ALJ was not persuaded the claimant sustained his burden to prove he suffered either an "accident" or an "injury" on August 1, 1998. ( See Tr. August 18, 2000, pp. 51, 55); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Furthermore, the ALJ's findings reflect his consideration of the applicable legal standard.
The term "injury" encompasses both "accidental injuries" and "occupational diseases." CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982). The claimant sustains an occupational disease when it results directly from the conditions under which work was performed and does not come from a hazard to which the worker would have been equally exposed outside the employment. Section 8-40-201(14), C.R.S. 2001. In Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that where the occupational exposure is not a precondition to the development of the disease, the claimant suffers an occupational disease only to the extent that the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought.
In contrast, 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). As argued by the claimant, a compensable work injury may be the unexpected, unusual, or undesigned occurrence or effect of an employee's normal work activities. See Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967).
Further, the existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury, where an industrial aggravation is the proximate cause of the disability or need for treatment. See H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990). However, the claimant must prove there was an injury caused by the work activities, and not merely a manifestation of a pre-existing condition. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989); Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985).
Here, the claimant testified that he reached up and was drilling an overhead door when he felt a sharp pain in his spine and neck. (Tr. December 16, 1999, p. 38). However, he did not immediately seek medical attention, and when he sought treatment in January 1999, he did not mention the door incident. (Tr. December 16, 1999, pp. 38, 44).
Dr. Shaw testified that at the time of the alleged injury the claimant was moving his head and neck in a manner similar to a Spurling's maneuver, which is a medial test used to detect cervical radiculopathy. (Tr. August 18, 2000, pp 12, 13). Based upon the claimant's response to the Spurling's maneuver, Dr. Shaw suspected the claimant had a herniated disc. (Tr. August 18, 2000, p. 14). However, Dr. Shaw opined that the positioning of the claimant's neck on August 1 neither caused, aggravated, nor accelerated the herniated disc. In fact, Dr. Shaw stated that there was no "cause and effect" relationship between the Spurling's maneuver and the claimant's herniated disc. (Tr. August 18, 2000, pp. 14, 28). To the contrary, Dr. Shaw opined that the claimant's condition was caused by degenerative changing due to aging, and that the claimant's condition would have become manifest regardless of the August 1998 incident. (Tr. August 18, 2000, pp. 16, 31).
Dr. Shaw's testimony adequately supports the ALJ's implicit determination that the claimant's symptoms were merely a manifestation of his pre-existing degenerative condition, and that he failed to prove the act of reaching up aggravated, accelerated, or intensified the pre-existing condition so as to constitute an "injury." Cf. H H Warehouse v. Vicory, supra. The ALJ's findings of fact support the conclusion that the claimant failed to prove a compensable injury. See Anderson v. Brinkhoff, supra; H H Warehouse v. Vicory, supra.
The claimant's further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated September 13, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 23, 2001 to the following parties:
Robert Gomez, 7030 Ash Court, Commerce City, CO 80022
SMG Denver Convention Complex, 700 14th St., Denver, CO 80202
Kevin Krayna, Zurich U.S., P. O. Box 20048, Kansas City, MO 64195
Zurich Insurance, P.O. Box 7936, Shawnee-Mission, KS 66207-0936
Neil D. O'Toole, Esq., 226 W. 12th Avenue, Denver, CO 80204-3625 (For Claimant)
Frank M. Cavanaugh, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Pendroy