Opinion
W.C. No. 4-641-314.
December 17, 2007.
FINAL ORDER
The claimant and respondents both seek review of an order of Administrative Law Judge Stuber (ALJ) dated August 30, 2007 that denied respondents' petition to modify medical and temporary total disability benefits, determined the proposed surgery was unrelated to the work injury and denied the claimant's request for an additional increase in the average weekly wage. We affirm.
The ALJ's pertinent findings of fact are as follows. While working for the Durango and Silverton Narrow Gauge Railroad (Railroad) on September 27, 1994 the claimant was struck by an automobile and his low back and left knee were injured. The Railroad is a common carrier. The claimant began working for the employer here as a truck driver in 2005. On February 2, 2005, the claimant injured his low back when he slipped on the running board of his truck and fell while working for the employer. Dr Winkler concluded that the claimant had only a possible lumboscaral strain as a result of the February 2, 2005 accident. Dr. Winkler testified that 75 percent of the claimant's current low back problems and disability were caused by his September 27, 1994 injury. The ALJ found that Dr. Winkler's opinion that 75 percent of the claimant's disability and that the need for treatment after April 2005 was due to the 1994 injury with the railroad common carrier was persuasive. The respondents' had filed a petition to modify benefits to require payment of only 25 percent of the medical and TTD benefits. The ALJ determined that the 1994 injury with the railroad common carrier was not an "industrial injury" for which the claimant could receive any workers' compensation benefits. The ALJ determined that liability could not be apportioned between successive industrial injuries because the 1994 injury could not result in any liability for workers' compensation benefits.
I.
We note preliminarily that neither party requested that a transcript of the hearing be prepared and, therefore, we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). On appeal, the respondents contend that the ALJ erred in denying respondents' petition to modify liability for temporary total disability (TTD) and medical benefits based upon apportionment related to a prior work injury that the claimant incurred while employed by the Durango and Silverton Narrow Gauge Railroad. We disagree.
We acknowledge that at least two court of appeals decisions have upheld the apportionment of liability for temporary disability and medical benefits between two employers and their insurers where the claimant suffered successive industrial accidents. See University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); State Compensation Insurance Fund v. Industrial Commission 698 P.2d 807 (Colo.App. 1985). Further we regard Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004), as authority for the apportionment between successive industrial injuries that contribute to temporary disability and need for medical treatment. Goffinet v. Cocat Inc. W.C. No. 4-677-750(December 15, 2006), aff'd, Goffinett v. Industrial Claim Appeals Office (Colo.App. No. 07CA0045, November 21, 2007) (not selected for publication).
In Resources One, LLC v. Industrial Claim Appeals Office, 148 P.3d 287 (Colo.App. 2006), the court noted the lack of explicit statutory authorization for the apportionment of medical and temporary benefits and held that no such right exists for prior non-industrial conditions. We have previously stated that Duncan does not authorize apportionment of medical benefits to a preexisting, non-industrial condition where that condition is aggravated by, accelerated by, or combines with an industrial injury to produce the need for treatment. Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005).
Here, the ALJ found that the claimant's 1994 injury was not an "industrial injury." The ALJ, citing Corbin v. Durango Silverton Narrow Gauge Railroad Company, W.C. 3-114-612 (October 16, 1995), found the employer was a common carrier and so was exempt from the Colorado Workers' Compensation Act pursuant to § 8-41-201, C.R.S. 2007. The ALJ also cited Waddell v. Industrial Claim Appeals Office, 964 P.2d 552, 554 (Colo.App. 1998) and our order in King v. Teletech Holdings, Inc. W.C. No. 4-647-023(August 17, 2006) for authority that military injuries are treated as "nonindustrial" injuries for purposes of apportionment.
The issue therefore becomes whether the 1994 injury is industrial or non-industrial for the purposes of apportionment. The ALJ reasoned that liability could not be apportioned because the 1994 injury could not result in any liability for workers' compensation benefits because § 8-41-201 C.R.S. 2007 provides that the Colorado Workers' Compensation Act shall not apply to common carriers by railroad.
The Supreme Court noted in Kernan v. American Dredging Co. 355 U.S. 426, 78 S.Ct. 394 (U.S. 1958) that for most industries compensation for employees and their dependents for deaths and injuries of industrial employment have been embodied in workers' compensation acts. In the railroad and shipping industries, however, the Federal Employers' Liability Act (FELA) and Jones Act provide the framework for determining liability for industrial accidents. The present FELA is not a workers' compensation act. Instead, it gives employees of interstate rail carriers an action in negligence against their employers, free of the fellow servant and assumption of risk defenses, and with comparative negligence put in place of common-law contributory negligence. 9 Larson, Workers' Compensation Law, § 147.01 at 147-2.
The claimant may have had a tort action against the driver of the automobile or a comparative negligence action against the Railroad. However, we agree with the ALJ that the 1994 injury was not an "industrial injury" for the purposes of apportionment. Therefore, we perceive no error in the ALJ's determination to deny the respondents' petition to modify the benefits to require payment of only 25 percent of the medical and TTD benefits.
II.
On appeal, the claimant contends that the ALJ abused his discretion in the determination of the claimant's average weekly wage. We disagree.
The ALJ found that the claimant was paid $6 per hour for 7.5 hours of training on January 21, 2005. Thereafter, the claimant earned $10 per hours for up to 40 hours per week, with time and one-half for hours in excess of 40 hours per week. Through February 2, 2005, the claimant earned gross wages of $973.75 over 13 days of work. The ALJ concluded that the fairest measure of the claimant's average weekly wage was $524.33, based upon the gross earning over one and six-sevenths weeks.
As found, the claimant's period of employment covered only 13 days. Admittedly, he earned a lower wage rate for the training day on the first day of his employment. Nevertheless, the claimant's hours were not well established. The ALJ concluded that the fairest measure of the claimant's average weekly wage is to divide the gross earning of $973.75 through February 2, 2005 by the one and six-sevenths weeks worked. The ALJ determined the claimant's average weekly wage was $524.33.
The claimant argues that the testimony of a representative of the employer at the hearing established that the claimant's true earning were higher then found by the ALJ. However, as noted above since neither party requested that a transcript of the hearing be prepared we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, supra.
Section 8-42-102(2)(d), C.R.S. 2007, sets forth the method for calculating the average weekly wage. The overall purpose of the statutory scheme is to calculate "a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). The ALJ is afforded discretionary authority in calculating the wage. We may not interfere with the ALJ's calculation of the average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An ALJ only abuses his discretion where the order "exceeds the bounds of reason," such as where it is unsupported by the record or is contrary to law. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Here the ALJ correctly cited the law and because of the lack of a transcript, we must presume that the ALJ's factual findings are supported by the record. Therefore, we cannot say the ALJ's order exceeded the bounds of reason.
III.
The claimant contends that the ALJ's finding that the proposed surgery is unrelated to the work injury should be stricken. We again disagree.
The ALJ found that the claimant failed to prove that the surgery proposed by Dr. Youssef was reasonably necessary to cure or relieve the effects of the February 2, 2005, work injury. The ALJ found that the opinion of Dr. Winkler were credible and persuasive and that the February 2005 injury did not cause or aggravate the spondylolisthesis and spinal stenosis condition in the claimant's spine, which was the object of Dr. Youssef's proposed surgery. The ALJ found the surgery was unrelated to the work injury. Additionally, the ALJ found that Dr. Winkler was persuasive that the claimant is a poor surgical candidate in light of his symptom magnification and psychosocial factors. Findings of Fact, Conclusions of Law, and Order at 10, ¶ 48.
The claimant argues that at the time of the hearing the claimant only argued that the insurer by its actions and inaction had consented to the surgery and had not submitted the issue of whether the surgery was reasonable and medically necessary. The claimant does not appeal the ALJ finding that he did not carry his burden of proof on the issue of reasonable medical necessity nor does the claimant appeal the ALJ's order that the insurer did not consent to the surgery. The claimant argues that he only seeks to strike the finding that the surgery was unrelated to the work injury and desires that the issue of whether the proposed surgery was reasonable and necessary remain open to be determined at a later time.
Here the claimant in his Case Information Sheet listed, as did the respondents in their Case Information Sheet, the issue of "medical benefits-Reasonably needed." We do not have the transcript of the hearing, but the ALJ outlined the testimony of Dr. Winkler on this issue as noted above. The ALJ concluded that the claimant failed to prove that the surgery proposed by Dr. Youssef was reasonably necessary to cure or relieve the effects of the February 2, 2005 work injury.
We have previously held that a showing that the compensable injury caused the need for treatment is a threshold prerequisite to the further showing that treatment is reasonable and necessary and the general endorsement of the issue of "medical benefits" might reasonably include a number of other issues, including "relatedness." Bekkouche v. Riviera Electric, W.C. No. 4-514-998 (May 10, 2007); Wilkinson v. Wal-Mart Stores, Inc. W.C. No. 4-674-582 (October 26, 2007). We perceive no error in the ALJ's having addressed the issue of whether the proposed surgery was reasonable and necessary.
Moreover, because the claimant failed to procure a transcript reflecting what issues were tried, we must presume the ALJ's consideration of the issues presented to him was correct. See Fleet v. Zwick, 994 P.2d 480, 483 (Colo.App. 1999) (party alleging error has burden to present record sufficient to disclose the error). See also, Martin v. Stith Construction W.C. No. 4-692-330 (October 25, 2007); Thornwall v. Colorado Cartridge/Out of Toner, W. C. No. 4-564-779 (June 24, 2004); Barron v. State of Colorado, W. C. No. 4-493-692 (January 29, 2004). The party seeking to overturn a judgment bears the responsibility for producing a record sufficient to demonstrate that an error has occurred. Otherwise, the regularity of the court's rulings will be presumed. See Hanna v. Print Expediters 77 P.3d 863 (Colo.App. 2003); Fleet v. Zwick, supra.
Under these circumstances, we presume the regularity of the ALJ's order and further presume the issue of whether the surgery proposed by Dr. Youssef was reasonably necessary to cure or relieve the effects of the February 2, 2005 work injury was before the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ's order dated August 30, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
DAWN TRUCKING, Attn: BARRY BOND, FARMINGTON, NM, PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, WILLIAM D. BONTRAGER, J. D., Attn: WILLIAM D. BONTRAGER, ESQ., C/O: COUNSELOR AT LAW, HESPERUS, CO, (For Claimant).
RUEGGSEGGER SIMONS SMITH STERN, LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: GERARD MCCLORY/KIM GOMEZ, DENVER, CO.