Opinion
W.C. No. 4-484-226
August 12, 2002.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which determined the claimant failed to prove a compensable occupational disease and, therefore, denied and dismissed the claim for workers' compensation benefits. We set aside the order and remand for entry of a new order.
The claimant alleged a low back injury resulting from her duties as a vehicle control agent in August 2000. The claimant's job required her to drive a vehicle and patrol for parking violators. It is undisputed the claimant suffers from a pre-existing degenerative back condition, which the ALJ found was symptomatic prior to August 13. On August 11, 2000, the claimant was on vacation and drove round trip to Colorado Springs. On August 12 the claimant awoke with complaints of stiffness and discomfort. She worked 10.5 hours on August 12 and 5 to 6 hours on August 13. On the morning of August 14, the claimant awoke with complaints of severe back pain, and sought medical treatment.
The ALJ found the claimant failed to sustain her burden to a compensable injury on August 13 or thereafter. In support, the ALJ found insufficient evidence that the claimant's work-related activity "contributed to the cause of her low back symptoms to a greater degree than did non-work related activity." (Finding of Fact 9). The ALJ also found "no evidence or no satisfying evidence as to what extent either the events of August 11 or 13 contributed to the decline or deterioration of the Claimant's degenerative low back condition and her continuing symptoms." (Finding of Fact 13). Further, the ALJ was unable to determine "to what extent" temporary or permanent aggravations combined to cause the claimant's symptoms. (Finding of Fact 14).
On review the claimant contends the ALJ misapplied the law by requiring the claimant to prove the extent to which non-work-related activity contributed to her disability. The respondents did not file a brief in opposition to the petition to review. Because we agree with the claimant that the ALJ may have misapplied the law, we set aside the order and remand for the entry of a new order. Section 8-43-301(8), C.R.S. 2001.
A compensable injury is an injury which "arises out of" and "in the course of" employment. Section 8-41-301 C.R.S. 2001; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). An injury arises out of and in the course of employment when the origins of the injury are sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the employee's services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
A compensable injury may result from the aggravation of a pre-existing non- occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Where the aggravation is the result of a prolonged exposure occasioned by the nature of the employment and not an event traceable to a particular time, place and cause, the new injury is an "occupational disease." See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Section 8-40-201(14), C.R.S. 2001, defines an occupational disease as one resulting directly from the employment or the conditions under which the work was performed, is a natural incident of the work and is a result of the exposure occasioned by the employment, can be fairly traced to the employment as a proximate cause, and "does not come from a hazard to which the worker would have been equally exposed outside of the employment."
In Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993), the Supreme Court concluded the requirement that the claimant not be "equally exposed outside of the employment" effectuates the "peculiar risk" test and requires that the risk or hazard causing the disease be more prevalent in the claimant's workplace than in everyday life or in other occupations. However, the court concluded the statute does not require that the hazardous conditions of employment be the sole cause of the disease or aggravation and "does not invite a weighing of the various hazards to which the worker has been exposed throughout his lifetime — some occupational, some not — in determining" the compensability of the disease. Instead, the Supreme Court held that if there are dual or concurrent causes of an occupational disease, and there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, "the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." Id. at 825.
We also note that, contrary to the ALJ's statement on the record (Tr. p. 32), the claimant is not required to prove that work-related factors are a greater cause than non-work related factors to prove a compensable industrial injury. In fact, in Anderson v. Brinkhoff, supra, the Supreme Court expressly rejected the notion that a disease is not compensable if it results from a hazard the claimant is equally exposed to outside employment. Id. at 825. Rather, if the claimant succeeds in establishing a causal connection between the hazards of employment and the disease, and the evidence shows the disease has "dual or concurrent causes," the burden shifts to the respondents to establish grounds for apportionment by showing nonindustrial factors contributed to the disability. Anderson v. Brinkhoff, supra; Cowin Co. v. Medina, 860 P.2d 535, 537 (Colo.App. 1992); see also Masdin v. Gardner- Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
Here, we agree with the claimant that the ALJ's order reflects a possible misapplication of the law. First, the ALJ suggests the claimant's condition has or may have dual or concurrent causes consisting of a preexisting degenerative condition which is aggravated by driving. As we read the order, the ALJ determined the claimant failed to prove her back pain was a compensable injury because she failed to prove the "extent" to which her non-industrial activities contributed to her disability. This finding represents a misapplication of the law because, as held in Anderson v. Brinkhoff, supra, the respondents bear the burden of proving the extent to which non-occupational hazards have contributed to the claimant's disability. This is true because the burden of proof is generally on the party asserting the affirmative of a proposition, and because policy considerations favor placing the burden of proof on the party whose actions resulted, at least in part, in the claimant's inability to apportion between various causes. Cowin Co. v. Medina, supra; Chasteen v. King Soopers, Inc., W.C. No. 4-445-608 (July 11, 2001).
Under these circumstances, the matter must be remanded for entry of a new order. On remand, the ALJ shall determine whether the claimant established prima facie proof that her employment caused, aggravated or accelerated her disability from the low back condition. If the ALJ finds the claimant is suffering from an occupational disease which was to some extent caused or aggravated by the hazards of employment, and to some extent caused or aggravated by nonindustrial factors, the ALJ shall apply Anderson v. Brinkhoff, and Cowin Co. v. Medina, to determine whether the respondents are entitled to a reduction in their liability. In reaching this result, we should not be understood as expressing any opinions concerning the factual issues which the ALJ must now resolve.
In light of this result, it is premature to address the claimant's arguments concerning the sufficiency of the evidence to support specific findings of fact. The ALJ may enter new findings on remand.
IT IS THEREFORE ORDERED that the ALJ's order dated August 16, 2001, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed August 12, 2002 to the following parties:
Shelbey Ivie-Adame, 3250 S. Lamar St., Denver, CO 80227
City and County of Denver, 1675 Broadway, #1600, Denver, CO 80202-4755
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
John Beckman, Esq., Employment Law Practice Group, 1675 Broadway, #1600, Denver, CO 80202 (For Respondent)
BY: A. Hurtado