Opinion
W.C. Nos. 4-426-248 4-502-369
November 1, 2002
FINAL ORDER
Superior National Insurance Company (Superior) seeks review of an order of Administrative Law Judge Muramoto (ALJ) which held them liable for medical benefits. We affirm.
The claimant suffered an accidental left knee injury on April 17, 1999, while leaving the McGuckins Hardware Store (McGuckins). The claimant went into McGuckins to purchase some parts required of his employment as a maintenance supervisor for the respondent-employer. At the time of the injury, the employer was insured for workers' compensation by Superior.
Dr. Reid diagnosed the claimant's left knee injury as a lateral meniscal tear and recommended surgery. Superior denied liability for the injury and as a result, the claimant did not pursue the surgery.
Between June 1999 and May 3, 2001, the claimant experienced left knee popping, catching, and locking. On May 3, 2001 the claimant suffered a compensable aggravation of his left knee injury when his left knee locked for several minutes. At the time of the aggravation, the employer was insured by American Compensation Insurance Company (American).
The claimant was subsequently examined by Dr. Voss, who diagnosed a lateral meniscus tear and meniscus cyst. On December 7, 2001, Dr. Voss performed surgery consisting of a left knee arthroscopy with partial lateral meniscectomy and removal of the meniscal cyst. Because the claimant had no left knee pain prior to April 17, 1999, and intermittent pain after that injury, Dr. Voss opined the tear and cyst were caused by the April 17 incident. Further, Dr. Voss opined that the lateral meniscus tear and cyst were the cause of the claimant's need for surgery.
The ALJ found the claimant suffered a compensable injury on April 17, 1999, which was aggravated on May 3, 2001. Consequently, the ALJ issued an order dated April 30, 2002, and mailed May 2, 2002, which required Superior to provide medical benefits for the left knee injury from April 17, 1999 to May 3, 2001. The order held American liable for medical treatment of the left knee injury after May 3, 2001.
American timely appealed the ALJ's order. American also moved for the entry of a corrected order which held Superior liable for the December 2001 knee surgery.
On June 3, 2002, the ALJ issued a Corrected Order as provided by § 8-43-302(2), C.R.S. 2002, which required Superior to provide reasonably necessary medical treatment for the April 17, 1999 injury, including all care associated with the December 2001 knee surgery. The ALJ ordered American to pay for all medical treatment necessitated by the May 3, 2001 aggravation. Superior timely appealed the ALJ's Corrected Order.
I.
Relying on Horodyskyj v. Richard Karanian [Freemyer v. the ICAO], 32 P.3d 564 (Colo.App. 1999), Superior contends the ALJ misapplied the law in finding the claimant sustained a compensable injury on April 17, 1999. Superior contends the claimant's injuries were the result of an "assault" that arose out of a private dispute motivated by the claimant's personal moral obligation. Consequently, they argue the assault was not sufficiently related to the claimant's work-related activities to be considered part of the claimant's employment. We perceive no basis to disturb the ALJ's finding on the issue of compensability.
Initially, we note that Superior's Designation of Record includes the "files of the Division of Workers' Compensation and the Division of Administrative Hearings." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest Superior requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
For an injury to be compensable, it must arise out of and occur in the course of employment. Section 8-41-301(1)(b), C.R.S. 2002. The course of employment requirement is satisfied when the employee shows that the injury occurred within the time and place limits of the employment. Popovich v. Irlando, 811 P.2d 379, 293 (Colo. 1991). An injury "arises out of employment" when it has its origin in an employee's work-related functions, and is sufficiently related to the employment to establish a casual connection between the employment and the injury. Popovich v. Irlando, supra; Ventura v. Albertsons, Inc., 856 P.2d 35 (Colo.App. 1992).
Injuries which are the result of an "assault" are divided into three categories of causation. The first category is assaults that have an inherent connection to the employment. In Re Questions Submitted by U.S. Court of Appeals, supra; Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). The second category is assaults resulting from a "neutral force". See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); In Re Questions Submitted by U.S. Court of Appeals, supra. The third category is assaults which are the result of a private dispute which the parties import into the work place. A work place assault is compensable unless it arises from a private or personal dispute. In Re Questions Submitted by U.S. Court of Appeals, supra.
In Horodyskyj v. Karanian, supra, the Supreme Court held that sexual harassment by one employee of another employee is not neutral and has no inherent connection with employment. Rather, the court concluded that acts of sexual harassment are "highly personal." Ibid at 478. Consequently, the court concluded that sexual harassment does not arise out of employment and is not compensable under the Workers' Compensation Act.
Superior's arguments notwithstanding, the cause of the claimant's injury is a question of fact to be resolved by the ALJ based on the particular circumstances presented. Cf. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Accordingly, we must uphold the ALJ's pertinent findings of fact if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). 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). This standard of review requires that we defer to the ALJ's credibility determinations and her assessment of the sufficiency of the evidence. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Where the evidence is conflicting, it is the ALJ's sole prerogative as the fact finder to resolve the conflicts, and we may not substitute our judgment for that of the ALJ in this regard. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) ; El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
The claimant testified that while he was standing at the checkout counter of McGuckin's, he overheard another customer yelling at the store clerk who was trying to verify the customer's signature on a credit card. The claimant testified he felt sorry for the clerk, and wanted to distract the customer from badgering the clerk, so he said "Take that back to New York." The customer then threatened the claimant, but the claimant stated he ignored the threat. (Tr. p. 34, 35). In a written statement to the Boulder Police Department, the customer stated that when his charge was finally approved by the store manager, he grabbed his purchases and stormed out the door. The claimant was leaving the store at the same time.
The ALJ found that as the customer hastily exited the store, he pushed the claimant out of the way and accidentally injured the claimant's left knee. The ALJ found there was no physical fight or punch between the claimant and the customer and that the customer did not intend to hurt the claimant. Under these circumstances, the ALJ found the claimant's injury was the result of an industrial accident, and not an assault.
Superior's arguments not withstanding, we perceive no reversible error in the ALJ's determination. Admittedly, the record contains some evidence that the customer assaulted the claimant. However, there is substantial evidence in the Boulder Police Department statements from the customer, the store clerk, and the store manager to support the ALJ's inference that the collision between the claimant and the customer was accidental. It follows that the ALJ did not err in failing to analyze the compensability issue in accordance with Horodyskyj v. Richard Karanian, supra.
II.
Superior also contends the ALJ erroneously held them liable for the cost of the claimant's December 2001 knee surgery. Superior contends the ALJ failed to determine which injury caused the need for surgery, and that the evidence does not support a causal connection between the 1999 injury and the 2001 surgery. Again, we disagree.
Superior is liable for the medical treatment which is reasonable and necessary to cure or relieve the effects of the April 1999 injury. Section 8-42-101(1)(a), C.R.S. 2002; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The determination of whether a particular treatment is reasonable and necessary to treat the industrial injury, as opposed to a subsequent aggravation, is a question of fact for the ALJ. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
Except as specifically modified, the ALJ's Corrected Order reincorporated the May 2 order. The May 2 order expressly relied on the opinions of Dr. Voss that the 1999 industrial accident caused the meniscus tear which in turn caused the cyst that lead to the need for surgery. (Finding of Fact 15). Consequently, the ALJ's findings are sufficient to ascertain the basis for her resolution of the "causation" issue, and we need not remand the matter for additional findings. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ only required to make specific findings on evidence found persuasive and determinative).
Dr. Reid recommended knee surgery in June 1999 and warned the claimant that he would continue to be symptomatic until he had surgery. (Reid, June 7, 1999). The claimant testified he continued to be symptomatic after the 1999 injury. He stated that he was able to work through the symptoms as long as he had assistance to perform maintenance duties that required kneeling and squatting. However, he stated that just before the May 2001 incident, he lost his assistance and began doing more kneeling and squatting until the cumulative effects of his symptoms caused his knee to lock for several minutes on May 3. (Tr. pp. 53, 63).
Dr. Voss opined that the May 3 aggravated and exacerbated the claimant's pre-existing knee condition and probably prompted the claimant to seek further medical treatment for his knee. Nevertheless, Dr. Voss opined the claimant's meniscus tear and meniscus cyst caused the need for surgery. Further, she opined that meniscal cysts are associated with a meniscal tear. Because the claimant had no knee pain before the 1999 injury, and then was symptomatic until the surgery, Dr. Voss opined that the cyst and tear were caused by the trauma of the 1999 injury. (Voss depo. pp. 7, 8, 13). Accordingly, there is substantial evidence in the claimant's testimony and the medical reports of Dr. Reid and Dr. Voss to support the ALJ's finding that independent of the May 3 aggravation, the claimant needed knee surgery to cure and relieve the effects of the 1999 injury.
IT IS THEREFORE ORDERED that the ALJ's order dated June 3, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
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. 2002. 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 __________November 1, 2002 __________to the following parties:
Robert C. Nelson, 718 E. Simpson St., Lafayette, CO 80026
Emily L. Nolan, H.R. Manager, Mental Health Center of Boulder, 1333 Iris Ave., Boulder, CO 80204
Superior National Insurance Company, c/o Beatrice Calvert, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
American Compensation Insurance Company, c/o Emily Finn, RTW Colorado, Inc., P. O. Box 6541, Englewood, CO 80155-6541
Gary P. Sandblom, Esq., 5390 Manhattan Circle, Boulder, CO 80303 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Mental Health Center of Boulder and Superior National Insurance Company)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents Mental Health Center of Boulder and American Compensation Insurance Company)
BY: A. Hurtado