Opinion
W.C. No. 4-608-265.
July 15, 2005.
FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Mattoon (ALJ), dated September 2, 2004, and February 9, 2005, which determined the deceased suffered a compensable heart attack and awarded death benefits. We affirm.
The deceased suffered an admitted industrial injury on June 12, 2001, which was diagnosed as an anterior dislocation of the right sternoclavicular joint. On October 7, 2001, the claimant underwent a surgical treatment. The decedent's recovery was marked with serious, repeated complications. As of December 2001, the claimant was noted to have proximal right shoulder instability secondary to the surgery, adhesive capsulitis, mild rotator cuff tendonitis, bicipital tendonitis, acromioclavicular arthritis, and mild parascapular myofascial pain, which were all related to the industrial injury. Physical therapy failed to eliminate pain, muscle tension and range of motions limitations caused by the industrial injury. On April 1, 2002, it was determined the original surgery was unsuccessful and as a result the decedent had a significant deficiency in the proximal clavicle. The following month the decedent underwent a right clavicle reconstruction surgery involving the installation of metal hardware. On June 9 the decedent necessitated emergency treatment when blood was found leaking from the incision. The next day the decedent was hospitalized for a staff infection and the incision site was reopened. Despite antibiotic treatment the decedent continued to experience complications from the staph infection. As a result the decedent sought emergency room treatment on July 5 and July 6. On July 31 the deceased was diagnosed a proximal clavicle shift, however no surgical intervention was recommended due to the chronic staff infection at the original wound site. The decedent was again treated in the emergency room on August 4. On August 6 the wound was reopened and drained. On August 11 the decedent was admitted to the hospital with symptoms of gasping respirations, extreme pain, shortness of breath, and shaking chills. The incision site was found to be significantly infected and the metal hardware was removed. Thereafter a drainage tube malfunctioned and was replaced during emergency room treatment on August 22, 2002. The decedent was again seen in the emergency room on August 23 with complaints of pain in the left arm where he previously had an intravenous tube. The next day the decedent suffered an acute myocardial infarction and died. The infarction was caused by "plaque rupture."
The deceased was survived by his spouse, Kimberly Helvey, and minor child, Courtney Janeen Helvey. The decedent's wife testified that throughout the course of treatment for the industrial injury the deceased was in a great deal of pain, had difficulty sleeping and was very stressed both physically and mentally. She also testified that in the last week or two before his death, the decedent suffered fainting spells and seizure-type like spells during which is face became very read and his heart raced. ( See Tr. August 5, 2004, pp 15-16, 18, 20).
Dr. Sbarbaro, who is a specialist in cardiovascular diseases, described the treatment course for the industrial injury as "complex with multiple surgical procedures and a long period of systemic sepsis caused by infection of the implanted orthopedic hardware," which was "extremely stressful" to the decedent. (Claimant's Hearing Exhibit B, November 24, 2003). Dr. Sbarbaro opined that:
"it is medically probable that [the decedent's] ten months of mental stress lead to some degree of progression of coronary disease and to plaque disruption and that, in addition to mental stress, it is medically probable that the physical stress [the decedent] also went through dealing with post surgery infection and multiple medical procedures lead to some degree of progression of coronary disease and to plaque disruption." (Claimant's Hearing Exhibits B).
Crediting the testimony of the claimant's surviving spouse and Dr. Sbarbaro, the ALJ found industrial injury was a significant causative factor in the decedent's death and awarded death benefits to Kimberly Helvey and Courtney Janeen Helvey in equal shares. The respondents timely appealed.
On review the respondents contend the award of death benefits is not supported by the record or the applicable law. We disagree.
Section 8-41-301(1)(c), C.R.S. 2004, creates the right to death benefits where the worker's death is "proximately caused by an injury or occupational disease." The industrial injury need not be the immediate cause of the death, but only a proximate cause to support an award of death benefits. Johnson v. Industrial Commission, 148 Colo. 561, 366 P.2d 864, 865 (Colo. 1961).
Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986), holds that to support an award of permanent and total disability benefits, the industrial injury must be a "significant" causative factor in the injured worker's permanent total disability in that it must bear a direct causal relationship between the precipitating event and the resulting disability. Two years later, in Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751, 753 (Colo.App. 1988), the court concluded that an occupational disease is the "proximate cause" of a worker's permanent and total disability if the occupational disease is a "necessary pre-condition" or "trigger" to the disability. Ibid at 753.
Expressly relying on Seifried v. Industrial Commission, supra, and Subsequent Injury Fund v. State Compensation Insurance Authority, supra, we concluded in Tibbets v. Union Carbide Corporation, W.C. No. 3-109-015 (December 27, 1995), that an occupational disease must be a significant cause of death or a "precondition or trigger" of the worker's death, to support an award of death benefits.
Whether the industrial injury was a significant causative factor in the death of an injured worker is a question of fact for the ALJ. Consequently, we must uphold the ALJ's finding if supported by substantial evidence. 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Furthermore, the claimants are not required to present medical evidence to establish the cause of the decedent's death. However, to the extent medical evidence is offered, it is the ALJ's sole prerogative to ascertain the probative weight of the evidence. In so doing, the ALJ is free to credit all or part of the medical expert's opinions. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Accordingly, in Trudeau v. Umetco Minerals Corporation, W.C. No. 4-537-010 (January 19, 2005), we upheld an award of death benefits where the injured worker became permanently and totally disabled as a result of an occupational disease which impaired his respiratory function. Several years after the injury the decedent died as a result of a respiratory failure secondary to an acute myocardial infarction. There was medical evidence which suggested the lung problems contributed only 15 percent to the low cardiac output and shock that developed after the heart attack. However, a medical expert opined the decedent could have survived the heart attack if he had not had the pulmonary problem. Crediting the medical expert's opinion, an ALJ found the occupational lung disease "contributed" to decedent's death because the lung disease weakened the heart over time and reduced the decedent's chances of surviving the heart attack. Under these circumstances, we concluded the ALJ's finding was supported by substantial evidence in the record. Further, we held the findings supported a conclusion the industrial lung disease was a significant causative factor in the decedent's death.
Contrary to the respondents' contentions, the medical reports of Dr. Sbarbaro and the testimony of the decedent's spouse support the ALJ's findings of fact. Admittedly, Dr. Sbarbaro opined the industrial injury was a "minor" causative factor not "the primary causative factor" of the decedent's advanced atherosclerosis. However, the record reveals an uninterrupted chain of treatment for medical complications caused by the industrial injury extending from the date of injury to the day before the decedent's fatal heart attack. The ALJ could reasonably infer from the lay evidence concerning the physical strain and emotional stress the decedent experienced over the course of treatment for the industrial injury, and the part of Dr. Sbarbaro's opinions she found persuasive, that the industrial injury had a significant impact on the progression of the decedent's coronary disease. Electric Mutual Liability Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964) (in reaching a conclusion concerning causation, the ALJ may make reasonable inferences from the evidence presented). Therefore, the ALJ did not err in finding that the claimants sustained their burden of proof for entitlement to death benefits.
Dr. Sbarbaro's statement that the decedent would have eventually suffered a plaque rupture even if the coronary disease had not been accelerated by the industrial injury does not compel a contrary result. The pertinent issue is not whether the decedent would have died someday; rather the issue is whether the industrial injury was a causative factor in the decedent's death on August 24, 2004. Aggravation or acceleration of a preexisting condition is generally recognized to represent a compensable event. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
We also reject the respondents' contention that Marinez v. Drywall Supply, W.C. No. 3-880-0704 (September 14, 1990), compels a contrary result. The evidence in Marinez was subject to conflicting inferences concerning whether the claimant's work-related paraplegia was a significant cause of the decedent's death several years later. A medical expert opined that the paraplegia "may have contributed" 25 percent to the claimant's illnesses which resulted in the claimant's death. However, the medical expert also opined that the claimant's death was 50 percent attributable to the claimant's genetic predisposition, and 25 percent to the claimant's "personal responsibility for healthy living." Further, the medical expert stated it was "entirely unclear" whether the claimant would have developed the fatal illnesses but for the paralysis. An ALJ resolved the conflict in favor of the respondents and determined the record failed to establish more than a "speculative and tenuous" relationship between the industrial injury and the worker's death. Because the record contained substantial evidence to support the ALJ's findings, we were required to uphold the denial of death benefits.
Here, as in Marinez the record contains substantial evidence to support the ALJ's pertinent findings. Furthermore, we may not reweigh the evidence on review. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Consequently, Marinez does not establish grounds to set aside the award of benefits in this claim.
IT IS THEREFORE ORDERED that the ALJ's orders dated September 2, 2004 and February 9, 2005, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Kimberly Helvey and Courtney Janeen Helvey, Pueblo, CO, Katie Cordova and Matthew Cordova, Pueblo, CO, Keenan R. Mino, c/o Dennis and Sandy Reed, Pueblo, CO, Bison Propane Bottle Exchange, Lakewood, CO, Liberty Mutual Insurance Company, Englewood, CO, Gregory Chernushin, Esq., Colorado Springs, CO, (For Claimant).
Carl Fatta, Esq., Pueblo, CO, (For Katie Cordova).
David G. Kroll, Esq., Denver, CO, (For Respondents).