Opinion
W.C. No. 4-320-928
January 20, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Hopf (ALJ) which determined that the claimant suffered a compensable occupational disease and awarded benefits. We affirm.
The claimant works as a long-haul truck driver, and has been employed by the respondent for the last nine years. In May 1996, the claimant began suffering rectal pain. He later experienced rectal bleeding. In July 1996, the claimant sought treatment from Kaiser Permanente and was diagnosed with hemorrhoids. He then resumed his work. When he returned to Kaiser Permanente on August 6, 1996, he was examined by Dr. Channel, whose clinic note states that the claimant's truck driving "aggravates" his hemorrhoidal condition. Dr. Channel recommended that the claimant take a vacation to treat his condition. While on vacation the claimant's rectal bleeding stopped and his pain diminished.
The ALJ found that the claimant had a preexisting hemorrhoidal condition which was not caused by his employment. However, the ALJ found that the symptoms of the preexisting condition were exacerbated by the claimant's work, which required prolonged sitting. The ALJ also found that the claimant's condition was not disabling in the absence of the aggravation caused by the employment. Under these circumstances, the ALJ found that the claimant's rectal bleeding constituted a compensable occupational disease.
Furthermore, the ALJ found that the prolonged sitting at work was a "necessary precondition" to the development of the claimant's disease. Therefore, the ALJ determined that the claimant's condition is not subject to apportionment under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
On review, the respondent argues there is no evidence that the claimant's rectal bleeding and anal fissure were "caused" by his employment. They also contend that the occupational exposure merely delayed the claimant's recovery from the hemorrhoidal condition. Therefore, the respondent argues that the record is insufficient to support the ALJ's finding that the claimant suffered a compensable occupational disease. We disagree.
To prove the existence of an occupational disease, the claimant is required to present evidence which establishes that the disease resulted directly from the conditions under which he performed his employment, and that his condition "can be fairly traced to the employment as a proximate cause," and does not come from hazards to which he would have been "equally exposed outside of employment." Section 8-40-201(14), C.R.S. 1997; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The fact that a claimant has a preexisting condition or disease does not preclude the claimant from proving a compensable injury due an occupational aggravation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). This is true even if the preexisting condition is hemorrhoids. See Industrial Commission v. Pacific Employer Insurance Company, 128 Colo. 411, 262 P.2d 926 (Colo. 1953).
Where the aggravation allegedly results in an "occupational disease," the claimant does not suffer a compensable injury until the "onset of disability." SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). Furthermore, in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that where the occupational exposure is not a "necessary precondition" to the development of the disease, the claimant sustains an occupational disease only to the extent that the conditions of the employment aggravate, accelerate or intensify the claimant's disability from the preexisting condition. The purpose of this rule is to ensure that the disease results from the claimant's occupational exposure to hazards of the disease and not hazards which the claimant is equally exposed outside of employment. See Stewart v. Dillon Companies, Inc., W.C. No. 4-257-450, November 20, 1996. Thus, where there is more than one cause of the claimant's disease, Anderson v. Brinkhoff, supra, allows an apportionment of liability between the occupational and nonoccupational causes.
As argued by the respondent, the claimant has the burden to prove a causal connection between the employment and his disability. Anderson v. Brinkhoff, supra. Whether he has sustained that burden is a question of fact for the ALJ. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992); Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). Consequently, we must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Substantial evidence is not limited to medical evidence. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical evidence is presented, it is solely the ALJ's prerogative to determine the credibility of the medical experts and resolve any conflicts in the evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, the claimant testified that his first symptom from the hemorrhoidal condition was pain, but after a long driving trip at work, he started to experience the rectal bleeding. (Tr. pp. 9-11). He also stated that with every passing day of sitting at work, he felt more pain and more bleeding. (Tr. p. 16).
In a report dated June 4, 1997, Dr. Channel opined that:
"[T]ruck driving has exacerbated [the claimant's] hemorrhoidal condition secondary to prolonged sitting as well as unpredictable rest stops. This has caused him to have irregular bowel movements with resultant straining and constipation. Once he developed his anal fissure, patient's pain was intensified by driving and improved on his days off."
Furthermore, Dr. Hughes opined that "prolonged sitting would not be well-tolerated" in an individual with a diagnosis of hemorrhoids. (Dr. Hughes May 20, 1997 report).
This evidence supports the ALJ's finding that the claimant's rectal bleeding was caused by his employment, and this finding supports the order. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (appellate issue is whether the evidence when viewed in the light most favorable to the prevailing party, is sufficient to support the ALJ's pertinent findings). Consequently, the ALJ's error, if any, in finding that the claimant's employment also caused the anal fissure, is harmless and will be disregarded. Section 8-43-310 C.R.S. 1997; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
The claimant also denied that he engaged in prolonged sitting off work. (Tr. p. 21). To the contrary, he stated that when he was not working he tried to be very active. He also stated that when he was not at work he avoided aggravating his hemorrhoids by controlling his diet, keeping a regular sleeping schedule, and getting exercise. (Tr. pp. 9, 16, 18). Based upon this evidence the ALJ could reasonably infer that the claimant's exposure to the hazards of the disease was a risk peculiar to his employment.
Moreover, the record supports the ALJ's finding that the hemorrhoidal condition was not disabling until the aggravation caused by the claimant's employment. Therefore, the ALJ's findings support the conclusion that the claimant suffered a compensable occupational disease. Anderson v. Brinkhoff, supra.
Accordingly, the issue becomes whether the ALJ erroneously failed to apportion liability for the claimant's condition in accordance with Anderson v. Brinkhoff, supra. The respondent contends that the record is insufficient to support the ALJ's determination that the claimant's driving activities were a "necessary precondition" to the development of his "disease." We reject this argument.
The claimant testified that his pain and rectal bleeding continued when he was working, but improved when he was able to take time off of work. (Tr. pp. 9-11). He stated that after a month off work he was completely healed, but added that when he returned to work the pain and bleeding became "stronger" than before. (Tr. pp. 18, 20). The claimant's testimony supports an inference that but for the occupational exposure to the hazards of the disease, the preexisting condition would not have involved rectal bleeding. Consequently, the claimant's testimony is sufficient to support the ALJ's finding that there was only one cause of the "disease" for which the claimant seeks benefits. Therefore, the existence of evidence in the record which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Based upon the ALJ's finding that there was only one cause of the claimant's occupational disease, this matter is factually distinguishable from Anderson v. Brinkhoff, supra. In Anderson the claimant had the disease of "antitrypsin deficiency" since birth. His occupational exposure to dust was neither the cause nor a necessary precondition to that disease. Rather, the work merely accelerated the disease.
Here, the ALJ found that there was no "disease" of rectal bleeding except for the occupational exposure to the hazards of the disease. Therefore, the claimant's disease is fully compensable, and the ALJ properly declined to apportion liability under Anderson v. Brinkhoff, supra. Consequently, we need not consider the respondents' further arguments on the apportionment issue.
IT IS THEREFORE ORDERED that the ALJ's order dated August 25, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Bill WhitacreNOTICE
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed January 20, 1998 to the following parties:
Jorge Saenz-Rico, 6525 West 114th Ave., Westminster, CO 80020
Jeanne Hogue, Yellow Freight System, Inc., P.O. Box 7932, Overland Park, KS 66211
Glen Davis, Yellow Freight System, Inc., 15905 Smith Road, Aurora, CO 80011
Douglas Phillips, Esq., 155 South Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondent)
BY: ________________________________