Opinion
W.C. No. 4-775-869.
October 2, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated May 15, 2009, that determined the claimant suffered a compensable injury to her left knee. We affirm.
The claimant worked for the employer as a bus driver. Her job required her to perform a pre-trip bus inspection. The claimant testified that on October 24, 2008, she began to inspect her bus and when she stepped onto the first step of the bus felt a "pop" in her left knee. The claimant had a preexisting left knee condition. The ALJ determined that the claimant's job duties as a bus driver aggravated, accelerated, or combined with her pre-existing left knee condition to produce a need for medical treatment. The ALJ concluded that the claimant had established by a preponderance of the evidence that she suffered a left knee injury during the course and scope of her employment with the employer on October 24, 2008. The respondents appeal.
A compensable injury may be the result of an industrial aggravation of a preexisting condition as long as the aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Moreover, whether there is a sufficient nexus or causal relationship between the claimant's employment and the injury is one of fact, which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988).
Therefore, the question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). We must uphold the ALJ's factual findings that are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
The respondents contend that the ALJ erred in failing to correctly analyze the causation issue as one in which the step on which the claimant was injured was a ubiquitous condition generally encountered both inside and outside of employment. The respondents argue that the ALJ did not make sufficient factual findings regarding whether the claimant's injury resulted from the ubiquitous condition of the step on the bus in combination with her preexisting left knee condition. We disagree.
We first note that special rules apply in the event an injury is "precipitated" by some preexisting condition brought by the claimant to the workplace. Where the precipitating cause of an injury is a preexisting condition suffered by the claimant, the injury is not compensable unless a "special hazard" of the employment combines with the pre-existing condition to cause or increase the degree of injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo. App. 1992). This principle is known as the "special hazard" rule. Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989). In addition, to be considered an employment hazard for this purpose, the employment condition must not be a ubiquitous one; it must be a special hazard not generally encountered. See Id. (high scaffold constituted special employment hazard to worker who suffered epileptic seizure and fell); Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo. App. 1985) (hard level concrete floor not special hazard because it is a condition found in many non-employment locations). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury due to the claimant's preexisting condition does not bear sufficient causal relationship to the employment to "arise out of the employment. Gates v. Rubber Co. v. Industrial Commission, supra; Gaskins v. Golden Automotive Group, L.L.C, W.C. No. 4-374-591 (August 6, 1999) (injury when preexisting condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition).
However, here the ALJ found that the precipitating cause of the claimant's left knee injury was the conditions of the claimant's employment. In support of this determination, the ALJ made the following findings of fact with record support. On October 1, 2008, the claimant visited her personal physician because she was experiencing left leg pain. Exhibit 2 at 15. The claimant reported that she had been suffering from pain in the back of her left leg. Exhibit 2 at 15. An x-ray of the claimant's left knee was negative. Exhibit 2 at 16. The claimant's personal physician did not impose any work restrictions as a result of the left leg pain. Exhibit 2 at 15. On October 9, 2008, the claimant underwent an ultrasound of her left knee. Exhibit 2 at 17. The ultrasound was negative. Exhibit 2 at 17. When the claimant stepped onto the first step of a bus, she felt a "pop" in her left knee. Tr. at 10. The claimant immediately experienced a stabbing pain that was more severe than the left knee pain she had experienced in early October 2008. Tr. 11. The claimant was taken to an emergency room. Exhibit 3. In contrast to the negative x-ray taken on October 1, 2008, a November 6, 2008 MRI revealed a "complete radial tear of posterior medial meniscus nerve root." Exhibit 2 at 16 Exhibit 4 at 24. Dr. Canton noted that the claimant's objective findings were consistent with a work related mechanism of injury. Exhibit 1 at 12.
In our view, these findings constitute substantial evidence supporting the ALJ determination that the claimant's employment was the precipitating cause of her knee injury, rather than her injury being "precipitated" by some preexisting condition brought by the claimant to the workplace. We do not read the order as concluding that simply because the claimant experienced symptoms at work that the ALJ felt compelled to find that the claimant sustained a compensable aggravation. Rather we read the order as correctly reflecting that when a claimant experiences symptoms while at work it is for the ALJ to determine whether the subsequent need for treatment was caused by an industrial aggravation of a preexisting condition or by the natural progression of the preexisting condition. See Cotts v. Exempla, W. C. No. 4-606-563 (August 18, 2005). The mere experience of symptoms at work does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Cotts v. Exempla, supra. Resolution of that issue is also one of fact for the ALJ. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
We note that the respondents point to contrary evidence including the opinions by Dr. McElhinney that the claim should be denied based on the claimant's preexisting left knee condition. However, we may not substitute our judgment by reweighing the evidence in an attempt to reach inferences different from those the ALJ drew from the evidence. See Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result).
IT IS THEREFORE ORDERED that the ALJ's order dated May 15, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D.Baird
______________________________ Thomas Schrant
MELINDA MELENDEZ, GREELEY, CO, (Claimant).
WELD COUNTY SCHOOL DISTRICT #6, GREELEY, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
KATHERINE E ALLEN, PC, Attn: KATHERINE E ALLEN, ESQ., GREELEY, CO, (For Claimant).
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: KENT L. YARBROUGH, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: LAURA HARRINGTON, DENVER, CO, (Other Party).