Opinion
W.C. No. 4-465-123
September 13, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) finding the October 31, 1995, injury caused the claimant's need for surgery, and rejecting their argument that the claim for benefits is not barred by the statute of limitations. The respondents contend that both determinations are contrary to the evidence. We affirm.
The claimant sustained a back injury while moving a water pump, on October 31, 1995. The claimant was initially placed at maximum medical improvement (MMI) on October 16, 1995, with a diagnosis of lumbar strain. On December 4, 1995, the claimant returned to the treating physician because he was experiencing ongoing back pain. At that time, the treating physician diagnosed lumbar strain with a possible herniated disc. The physician imposed restrictions, and prescribed medication and three weeks of physical therapy.
Despite the injury, the claimant did not lose time from work and continued to perform his usual heavy duties through December 31, 1999. In the summer of 1999, the claimant began to experience worsening back pain and pain radiating down the left leg. On May 2, 2000, the claimant was diagnosed with a ruptured disc at the L4-5 level, and surgery was performed to repair the disc on December 18, 2000. The claimant filed a claim for benefits on June 26, 2000.
In a report dated November 30, 2000, the claimant's treating physician opined the claimant's "existing condition was caused by his work injury in October 1995." At the hearing, the treating physician testified the 1995 the injuries set in motion an accelerated degenerative process and caused the natural and progressive worsening of the disc. The physician also testified that the physical work which the claimant performed after the injury worsened the claimant's condition to the point he became a candidate for surgery. (Tr. pp. 58, 62-63).
The ALJ found the claimant's ruptured disc was causally related to the October 31, 1995 industrial injury. In support of this determination, the ALJ cited the testimony and report of the treating physician that the industrial injury caused "accelerated degenerative changes which, combined with claimant's subsequent use of his back, led to progressive deterioration resulting in the need for surgery in 2000." Thus, the ALJ ordered the respondents to pay for the medical treatment associated with claimant's worsened condition.
The ALJ also rejected the respondents' contention that the claim for benefits was barred by the statute of limitations. Specifically, the ALJ found claimant did not become aware of the nature, seriousness, and probable compensable nature of his injury until the summer of 1999. In support, the ALJ found claimant did not miss time from work and did not lose wages until the year 2000. Further, the ALJ found that in 1995 the treating physician did not tell the claimant he had a herniated a disc or suffered serious injury to his lower back that could be permanently disabling.
I.
On review, the respondents first contend the ALJ erred in determining the claim is not barred by the statute of limitations. The respondents argue the ALJ applied an incorrect standard of law, that the evidence does not support the findings, and the "overwhelming evidence" demonstrates the claimant knew the nature, seriousness, and probable compensable character of his injury in 1995. We reject these arguments.
Section 8-43-103(2), C.R.S. 2000, provides that the right to compensation and benefits "shall be barred unless, within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division." In applying this statute, our courts have held the statute does not commence running until the claimant, as a reasonable person, "should recognize the nature, seriousness, and probable compensable character of the injury." City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). Generally, the question of whether these circumstances exist so as to bar a claim for benefits is an issue of fact for determination by the ALJ. See Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984).
The ALJ need not find a claimant recognizes the "nature and severity" of a back injury merely because the injury causes continuing pain. It has been held that if a claimant continues to perform his regular employment after the injury and does not recognize the injury subjects him to the possibility of a subsequent disc herniation, the claimant does not recognize the nature and severity of the injury. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1994). Moreover, a claimant many reasonably not recognize the probable compensable nature of the injury until the injury causes disability which entitles the claimant to receive compensation benefits. Romero v. Industrial Commission, 632 P.2d 1053 (Colo.App. 1981); Correll v. Storage Technology Corp., W.C. No. 4-221-615 (July 28, 1995).
Because the issues are factual in nature, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to view the evidence in a light most favorable to the prevailing party. Further, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, we note the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. The ALJ need not address all evidence, provided he makes findings concerning the evidence which he considers to be dispositive of the issues involved. Moreover, we infer the ALJ implicitly rejected evidence which is contrary to his findings. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Finally, we presume the ALJ recognized the correct legal standards and considered the pertinent factors. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977).
First, we reject the respondents' assertion the ALJ applied a purely subjective standard and failed to determine whether a "reasonable person" would have recognized the nature, seriousness, and probable compensable nature of the injury. Indeed, the ALJ explicitly stated the correct legal standard. (Conclusion of Law 2).
Further, substantial evidence supports the ALJ's finding that the claimant, acting as a reasonable person, did not recognize the nature, seriousness, and probable compensable nature of the injury until the summer of 1999. The claimant testified that in 1995, he was not told he possibly had a herniated disc, and he believed his condition would improve. (Tr. p. 18). The claimant's treating physician testified that in December 1995, he believed the claimant had injured his disc, and it was "more probable than not" that he explained this to the claimant. However, the physician had no independent recollection of making that explanation to the claimant. (Tr, p. 57, 64-65). Moreover, the written documentation which the treating physician provided to the claimant on December 4, 1995, contained the diagnosis "Lumbar strain R/O L HNP." Thus, although the evidence was conflicting, the ALJ plausibly found the claimant as a reasonable person did not know the nature and seriousness of his injury until his condition substantially worsened in 1999. City of Durango v. Dunagan, supra.
The evidence also supports the ALJ's determination that the claimant did not recognize the probable compensable nature of the injury. The record contains substantial evidence the claimant continued to perform his regular duties from the date of the injury through the December 1999. Consequently, the claimant was not entitled to receive any compensation for the injury before the year 2000, nor did he necessarily recognize the injury would eventually lead to compensable consequences. Thus, the record supports the ALJ's determination that the injury was not initially "disabling." Cf. Romero v. Industrial Commission, supra. The fact that some evidence would support contrary findings is immaterial on review.
Insofar as the respondents make other arguments, we find them to be without merit.
II.
The respondents next contend the ALJ was compelled to find the claimant's herniated disc was caused by "intervening causative factors," including the claimant's "ranch work" and work performed for subsequent employers. We reject this argument.
The question of which of two possible causes is responsible for a claimant's need for treatment is one of fact for determination by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1995). Consequently we must uphold the ALJ's resolution if supported by substantial evidence in the record. See University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001).
Further, it is well-established that if an industrial injury leaves the body in a weakened condition, and the weakened condition is the proximate cause of additional injury, the resulting injury is compensable. This is true even though the weakened condition combines with other factors to produce the ultimate injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970) (where claimant fractured his leg in an industrial injury, and refractured his leg when he fell on an icy sidewalk, evidence supported the finding that the industrial injury was the legal cause of the refracture).
Here, the treating physician expressed the opinion that the 1995 injury left the claimant's disc in a weakened condition, and this weakened condition played a direct causative role in the ultimate herniation. Thus, there was substantial evidence to support the ALJ's imposition of liability on the respondents. City of Durango v. Dunagan, supra. It is true the ALJ found claimant's subsequent activities "combined" with the 1995 injury, but we understand the ALJ to have found the ruptured disc would not have occurred but for the 1995 injury. Thus, the record supports the determination that the 1995 injury was the legal cause of the claimant's need for treatment, and the claimant's subsequent activities did not rise to level of "intervening causes" of the need for treatment.
Admittedly the treating physician provided some testimony which would support another finding. However, the ALJ was free to resolve the inconsistencies in the treating physician's opinions and draw appropriate inferences. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Neither do we believe the ALJ focused on the possibility of an intervening injury without considering whether the claimant might have sustained an "occupational disease" while working for subsequent employers. The respondents clearly identified this issue at the commencement of the hearing, and we believe the ALJ implicitly rejected it by finding the 1995 injury was the cause of the claimant's need for treatment. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated February 20, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
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. 2000. 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 September 13, 2001 to the following parties:
Ralph Hoaglund, 4136 County Road 309, Parachute, CO 81635
B B Excavating, P. O. Box 249, Vail, CO 81658-0249
Claims Manager, T.I.G. Fairmont Insurance Co., P. O. Box 15267, Irving, TX 75015
Christopher Seidman, Esq., 101 S. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy