Opinion
W.C. No. 4-488-123
March 7, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) insofar as it determined the claimant sustained a compensable back injury and awarded 3 days of temporary disability benefits. The respondents contend the record lacks substantial evidence to support the ALJ's order. We affirm.
The claimant was employed as a stocker. He testified that on January 1, 2001, at approximately 4 AM, he experienced a slight strain of his left lower back while pushing a soda cart. Nevertheless, the claimant was able to complete his shift. The claimant slept during the day, and aside from experiencing "regular soreness" when he awoke at 4:30 PM, did not have any pain. At approximately 9 PM January 1, the claimant was visiting his mother when he bent to pick up a coat and experienced a sudden onset of low back pain.
The claimant reported the injury to the employer on January 2, 2001, and was referred for medical treatment. One of the treating physicians, Dr. Grauerholz, diagnosed a lumbar strain with spasm and marked a box on a form indicating the injury is work related. Dr. Grauerholz released the claimant to modified employment with restrictions against bending, lifting, stooping, or pushing. No modified employment was offered to the claimant in writing until January 8, 2001, when the claimant's restrictions were reduced.
Crediting the claimant's testimony and the reports of Dr. Grauerholz, the ALJ found the claimant proved a compensable injury on January 1, 2001. Further, the ALJ found the claimant proved the industrial injury rendered him unable to perform his usual duties between January 2 and January 8, when the claimant returned to modified work. Thus, the ALJ awarded temporary disability benefits from January 5, 2001, through January 7, 2001.
See § 8-42-103(1), C.R.S. 2001.
On review, the respondents contend the record lacks substantial evidence to support the ALJ's finding that the claimant proved a compensable injury. The respondents argue the evidence compelled the ALJ to find the claimant's back symptoms were caused by reaching over to pick up the coat, not the "slight strain" which the claimant experienced when pushing the cart. We disagree.
The claimant was required to prove the disability and need for medical treatment were caused by an injury which arose out of and in the course of the employment on January 1, 2001. Section 8-41-301(1)(c), C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Once the claimant proves a compensable injury, results flowing proximately and naturally therefrom are also compensable. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). The question of whether the claimant carried the burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, supra.
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc., 989 P.2d 251 (Colo.App. 1999); Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' argument notwithstanding, the record contains substantial evidence to support the ALJ's finding the claimant proved an injury arising out of and in the course of his employment. The ALJ credited the claimant's testimony that he experienced a strain of the left lower back at work, and within 24 hours experienced a sudden onset of pain in the same area of the body where the strain occurred. The ALJ could plausibly infer the claimant would not have experienced the pain when he reached to pick up the coat but for the already weakened condition of his back. Although the respondents asserts there is no medical evidence to support such a conclusion, the office note of January 2, 2001, and the "Physician's Initial Report" of the same date, reveal that Dr. Grauerholz was aware of the delay between the strain and the onset of pain, but nonetheless found a causal relationship between the two events. Where, as here, the evidence admits of two equally plausible inferences, we may not substitute our judgment for that of the ALJ concerning the inference to be drawn. Metro Moving and Storage Co. v. Gussert, supra.
The respondents assert the ALJ "blatantly disregarded" the claimant's testimony that back soreness, which the claimant experienced upon waking in the afternoon of January 1, was nothing "out of the ordinary." However, the ALJ need not make findings of fact concerning evidence which she does not find to be dispositive of the issues involved. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Implicit in the ALJ's order is the conclusion the claimant was not aware he had injured himself at work until he experienced the sharp pain when reaching to pick up the coat. Thus, the presence or absence of pain during the afternoon, and the claimant's opinion concerning the cause of any such pain, were not decisive.
The respondents also assert the ALJ erred in finding the claimant's disability between January 2 and January 8 was caused by the injury. The respondents reiterate the causation argument rejected above. The respondents also argue it is not clear from the ALJ's order "what evidence or testimony she relied upon" in finding the injury precluded the claimant from returning to his usual job as an overnight stocker. These arguments are without merit.
The following language from our decision in Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999), is pertinent:
In order to establish the right to temporary disability benefits the claimant must prove the injury "caused disability." Section 8-42-103(1), C.R.S. 1998; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term disability, as used in workers' compensation cases, connotes two elements. The first element is "medical incapacity" evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by a claimant's inability to "resume his or her prior work." Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of "disability" may be evidenced by a complete inability to work, or by restrictions which impair the claimant's ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999).
The question of whether the claimant has proven the existence of restrictions comprising the "medical incapacity" element of disability is one of fact for determination by the ALJ. In making this determination the ALJ is not restricted to considering medical evidence, nor is he required to give any special weight to the opinions of the treating physician. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) (claimant need not produce medical evidence of restrictions to establish disability); Meagher v. City and County of Denver, W.C. No. 4-274-962 (May 21, 1998) (in view of Lymburn, ALJ need not credit opinion of treating physician concerning claimant's restrictions when deciding initial question of disability). Similarly, the question of whether the restrictions actually impair the claimant's ability to perform his regular employment is one of fact for the ALJ. See Ziel v. Eastman Kodak Co., W.C. No. 4-313-166 (June 12, 1998).
Here, the record contains medical and lay evidence that between January 2 and January 8 the claimant was restricted from bending, lifting, stooping, and pushing. (Grauerholz Report, January 2, 2001; Tr. p. 15). Further, as was evidenced by the occurrence of the accident, the duties of the claimant's employment required him to push a cart in order to stock soda. (Tr. pp. 12, 27). Finally, when the claimant provided his restrictions to the employer on January 2, the employer indicated the claimant could return to modified employment, but the employer failed to assign the claimant to any specific duties within his restrictions. Thus, we have no difficulty in determining the basis of the ALJ's award of temporary disability benefits, and find the order is fully supported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ's order dated June 14, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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 March 7, 2002 to the following parties:
Peter Musick, 2626 W. 1st St., #264, Greeley, CO 80631
Wal-Mart Stores, Inc., 3103 S. 23rd Ave., Greeley, CO 80631
American Home Assurance, 160 Water St., New York, N Y 10038
American Home Assurance, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Richard A. Bovarnick, Esq., and Tiffany L. Scully, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy