W.C. No. 4-575-128.Industrial Claim Appeals Office.
May 10, 2004.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied and dismissed his claim for workers’ compensation benefits. We affirm.
On March 4, 1999 the claimant accidentally inhaled hydrochloric acid while on the job site. The claimant sought emergency medical treatment the following day for a cough. The employer filed a First Report Injury and paid for the emergency treatment.
No further action occurred until April 11, 2003, when the claimant filed a Claim for Workers’ Compensation benefits, which alleged injuries to the esophagus, lungs and stomach from the inhalation incident. The respondents denied liability and argued the claim is barred by the 2 year statute of limitations currently codified at § 8-43-103(2), C.R.S. 2003.
The ALJ found the claimant failed to prove that his current stomach problems are a result of the 1999 industrial exposure to hydrochloric acid. Further, the ALJ found the claimant failed to prove a tolling of the statute of limitations or a reasonable excuse for his failure to file the claim within 2 years of the March 4, 1999 industrial exposure. Therefore, the ALJ dismissed the claim.
On review the claimant contends he proved a compensable lost time injury and requests an award of temprary disability and medical benefits. The claimant also contends the ALJ erred in refusing to impose a penalty for the respondents’ failure timely to admit or deny liability and renews his contention that the statute of limitations was tolled. Further, the claimant asserts he established a reasonable excuse for his failure to file a formal claim prior to April 2003. We perceive no basis to disturb the ALJ’s order.
An injury must “arise out of and in the course of” employment to be compensable and it is the claimant’s burden to prove these requirements by a preponderance of evidence. Section 8-41-301
C.R.S. 2003; Madden v. Mountain West Fabricators, 977 P.2d 861
(Colo. 1999). An injury “arises out of” the employment when it is sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the service provided to the employer Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The “course of” employment requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship and during an activity that had some connection with the employee’s job-related functions Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991).
The failure to prove either requirement of a compensable injury is fatal to a claim for workers’ compensation benefits. Therefore, the claimant’s assertion that he was not in the course of employment at the time of the injury in and of itself is sufficient to support the ALJ’s order denying benefits. (See
Brief in Support of Petition to Review p. 20).
In any case, the claimant bears the burden to prove his entitlement to benefits. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). To sustain his burden, the claimant was required to prove that his stomach problems are the “proximate and natural consequence” of an industrial exposure on March 4, 1999. See Vanadium Corporation of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957). Whether the claimant established a causal connection between the March 4 incident and the stomach problems was a question of fact for resolution by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000) ;Chasteen v. King Sooper, Inc.,
W.C. No. 4-445-608 (July 11, 2001), aff’d., Chasteen v. Industrial Claim Appeals Panel (Colo.App. No. 02CA0864, February 27, 2003). We must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2003; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we must defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence in support of the claim. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002).
Here, the medical record amply supports the ALJ’s finding that the claimant failed to prove the isolated industrial exposure to hydrochloric acid on March 4, 1999, was a causative factor in the claimant’s subsequent abdominal problems. To the contrary, the ALJ reasonably inferred that the claimant’s stomach problems are the result of a peptic ulcer disease. Further, this finding supports the conclusion the claimant failed to prove his entitlement to temporary disability and additional medical benefits on account of the stomach problems. Therefore, the ALJ did not err in denying the requested benefits.
In view of our remand, the claimant’s remaining arguments are moot. This is true because even if the ALJ erroneously determined that the claim is barred by the statute of limitations, the result is unchanged. Thus, the ALJ’s error, if any, was harmless and does not establish grounds which afford us a basis to grant appellate relief. See § 8-43-310 C.R.S. 2003; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded); cf. Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 18, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Michael Edmond, Criminal Justice Center, Colorado Springs, CO, Ed Gray, Volt Information Services, Inc., Orange, CA, Hartford Casualty Insurance Co., c/o Mary Ann Slick, ITT Specialty Risk Services, Inc., Denver, CO, Tama L. Levine, Esq., Denver, CO, (For Respondents).