Opinion
W.C. No. 4-774-216.
September 14, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated April 20, 2009, that found the claimant suffered a compensable injury and ordered the respondents to pay the claimant temporary disability benefits and provide certain medical treatment. We affirm.
The ALJ made the following findings of fact. The claimant was a machinery operator for the employer and was operating a roller on October 1, 2008. The claimant was found on his back on the ground next to his roller by a co-worker. The claimant's bottom lip was cut and he complained of a headache. The roller represented a special hazard of employment as it placed the claimant nearly five feet off the ground. The concussion he sustained and the injuries to his lip and mouth were a result of the claimant's hitting his face and head first on the roller and then the ground when he lost consciousness and fell from the roller to the ground. The ALJ concluded that the claimant's fall was compensable, even though the loss of consciousness was unrelated to the claimant's employment. The ALJ awarded benefits.
I.
The respondents first contend that the evidence contained in the record does not support the finding that the claimant sustained a compensable injury. We disagree.
We note preliminarily that to prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a "contested fact is more probable than its nonexistence." Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo. App. 1984). We must uphold the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2009; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000). Thus, on review the issue is whether the ALJ's findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Under this standard, we are required to defer to the ALJ's resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
The respondents argue that there is no presumption that an employee found injured on his employer's premises is injured from something arising out of his work. We do not dispute that where a pre-existing idiopathic condition causes the claimant to fall, the injury does not arise out of the employment unless the claimant proves a causal connection between the employment and the fall. Irwin v. Industrial Commission, 695 P.2d 763 (Colo. App. 1984). Thus, a completely unexplained fall is not compensable. See Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968). However, those are not the circumstances found by the ALJ to be present here.
The respondents argue that there is no evidence in the record that supports the ALJ's findings that the claimant fell five feet to the ground from the roller. The respondents argue that the evidence in the record supports the finding that the claimant had dismounted his roller to put away his vest and then passed out and fell to the ground. We acknowledge that here there was no eyewitness to the accident. In addition, the claimant was not able to testify to the events immediately preceding his discovery on the ground by a co-worker.
However, an ALJ's finding may be inferred from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo. App. 1996). The claimant need only prove within reasonable probability that the conditions of employment caused the injury. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990); Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo. App. 1988) (circumstantial evidence may be sufficient to establish causation without supporting medical opinion).
The respondents' assertion notwithstanding, substantial evidence supports the ALJ's finding concerning the cause of the claimant's fall. The ALJ made the following findings of fact with record support. On October 1, 2008, the claimant operated a roller for the employer. Tr. at 10. The claimant's foreman gave him a new vest and he decided to put the vest in his truck. Tr. at 14-15. The claimant took his roller over to where his truck was parked, but does not remember anything else until he was back on his roller later that afternoon. Tr. at 14-16, 59. The claimant was found on his back on the ground next to his roller by a co-worker. Tr. at 17-19, 59. The co-worker noticed that the roller was in neutral with the brake on and running. Tr. at 62. The coworker found the claimant lying next to his roller with his hard hat five feet away and his radio five feet further away. Tr. at 60-61. This evidence demonstrated that the claimant fell in such a way that his radio was thrown further than his hard hat, which is not consistent with a fall from ground level directly to the ground. The claimant was found lying on his back with a bloody lip following the fall. Tr. at 60. The medical records document a bruise on the back of the claimant's head. Exhibit 8 at 3. This evidence showed it was more probable than not that when the claimant fell he struck his lip on his roller causing the bloody lip before striking the back of his head on the ground. The claimant's loss of consciousness was unrelated to the claimant's employment, but the claimant's fall five feet from the roller to the ground was a special hazard of employment. Tr. at 54. The ALJ concluded that the claimant had proven that he suffered a compensable injury arising out of and in the course of his employment. In our view, there is substantial evidence in the record supporting the ALJ's findings of fact. Further, the ALJ's conclusions regarding the circumstances of the claimant's injury are supported by plausible inferences drawn from the record.
The respondents outline a significant amount of evidence from which the ALJ could have drawn a different conclusion. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
With respect to the ALJ's finding that the roller was a "special hazard," we note that where a claimant's fall at work is precipitated by a preexisting physical infirmity which is unrelated to the employment, the resulting injuries are not compensable unless a special hazard of employment elevates the risk of injury or increases the seriousness of the injuries sustained. The rationale for this holding is that if a fall is precipitated by a preexisting personal condition the resulting injury does not "arise out of employment" unless a "special hazard" supplies the requisite causal link to the employment. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992) (vehicular travel was a special hazard of employment even though accident was precipitated by preexisting epilepsy); Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989) (25-foot scaffold was special hazard to employee whose fall was precipitated by preexisting epilepsy). A special hazard is not "ubiquitous" in the sense that there is an equal likelihood it will be encountered outside of the employment. Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo. App. 1985).
In our view, there is substantial evidence in the record that supports the ALJ's determination that the roller was a special hazard. Operating the roller placed the claimant off the ground and the ALJ made plausible inferences drawn from the record that the claimant fell from the roller striking the back of his head on the ground. We perceive no reversible error in the ALJ's determination that the fall from the roller approximately five feet off the ground represented a special hazard of employment. In any event, respondents concede that if the claimant fell five feet to the ground from off the roller the injury would be work-related even though he had lost consciousness due to non-work-related causes. Therefore, we perceive no reason to disturb the ALJ's determination that the claimant had proven that he suffered an injury arising out of and in the course of his employment when he fell from the roller to the ground.
II.
The respondents next contend that the ALJ erred in finding that Dr. Keefe is the claimant's authorized treating physician. The respondents argue that the evidence does not support a waiver of the employer's right of first selection. The respondents further argue that the issue of change of physician or whether they provided a list of two providers to the claimant was not before the ALJ. We find no reversible error.
The ALJ made the following findings of fact with record support. On the day of the accident, the claimant's supervisor observed that the claimant's bottom lip was cut and that the claimant complained of a headache. Tr. at 68, 76-77. The supervisor referred the claimant to a physician for medical treatment on October 1, 2008. Tr. at 76. However, when the claimant reported his injury to his supervisor the employer did not establish who the claimant was referred to for medical treatment. The claimant contacted Dr. Keefe on the day after the accident and Dr. Keefe referred the claimant to the Parkview Hospital emergency room. Exhibit 8 at 4. The employer did not refer the claimant to Concentra until almost three weeks after the claimant's injury. Exhibit B at 32-33; Therefore, the ALJ concluded that the right to select a treating physician passed to the claimant.
In general, the employer or insurer has the right in the first instance to select the physician who attends the injured employee, but if the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician. Section 8-43-404(5)(a), C.R.S. 2009; see Vanadium Corp. of America v. Sargent 134 Colo. 555, 307 P.2d 454 (Colo. 1957). In our view, this is not a case in which the ALJ decided that the right of selection automatically passed to the claimant because the employer failed to designate an authorized physician following receipt of some knowledge connecting the injury with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App. 1984). Rather, as we read the ALJ's order, he determined that the employer effectively failed to designate a treating physician at the time of the claimant's injury. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565, 567 (Colo. App. 1987) (employer must tender medical treatment forthwith upon notice of injury). In this regard, we note that the ALJ recited the supervisor's testimony about referring the claimant to a physician, but he did not make a corresponding finding that the employer made a referral to a treating physician. See State Compensation Ins. Fund v. Foulds, 167 Colo. 123, 126-27, 445 P.2d 716, 718 (Colo. 1968) (recitals of evidence do not constitute findings of fact).
According to the ALJ's findings, the respondent employer did not refer the claimant to Concentra until almost three weeks after his industrial injury. An employer's failure to designate a treating physician at the time of injury allows the claimant to make the selection. Jefferson County School Dist. R-1 v. Goldsmith, 878 P.2d 116, 118 (Colo. App. 1994). Thus, the ALJ was correct in determining that the respondents' failure to direct the claimant to the authorized provider at the time of injury effectively sanctioned Dr. Keefe as a treating physician under the circumstances. It is therefore unnecessary to address the respondents' alternate arguments regarding the ALJ's insertion of the provision to the claimant of a list of providers.
As noted above, the nature and scope of our review is controlled by § 8-43-301(8). We are bound by the ALJ's determinations if they are supported by substantial evidence in the record. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). The ALJ's determination that the right to select a treating physician passed to the claimant is supported by the record.
IT IS THEREFORE ORDERED that the ALJ's order dated April 20, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
FRANK ALMEDA, PUEBLO, CO, (Claimant).
LA FARGE CONSTRUCTION INC., Attn: SONIA BIXLER, C/O: CHURCH RANCH OFFICE CENTER, WESTMINSTER, CO, (Employer).
MCDIVITT LAW FIRM, PC, Attn: SHEILA TOBORG, ESQ., COLORADO SPRINGS, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KAREN G. TREECE, ESQ., DENVER, CO, (For Respondents).
GALLAGHER BASSETT SERVICES, Attn: ALIXE LANDRY, ENGLEWOOD, CO, (Other Party).
LAFARGE NORTH AMERICA, Attn: MICHAEL GUARINO, HERNDON, VA, (Other Party 2).