W.C. No. 4-799-270.Industrial Claim Appeals Office.
November 2, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated May 5, 2011, which denied and dismissed her claim for workers’ compensation benefits for her bilateral carpal tunnel syndrome (CTS). We affirm.
The following facts are taken from the record and from the ALJ’s findings of fact. The claimant worked as a janitor at the employer’s warehouse distribution center since September 13, 1976. The claimant’s job duties included sweeping, scrubbing, and picking up dropped or spilled products. While she cleaned the 13-acre warehouse, the claimant rode a self-propelled cart, called a mule, which also carried her cleaning supplies, mop, broom, and trash can. The claimant’s job involved constant, but not repetitive, use of her hands to hold objects that included the mule driver’s handle, mop handle, broom handle, or trash.
On April 8, 2009, the claimant saw Dr. Hall for consultation concerning an unrelated condition, or right leg pain. In her report, Dr. Hall stated that the claimant “has known carpal tunnel for many years.” Dr. Hall stated that the claimant was “going to look into whether [the bilateral carpal tunnel] is workmen’s compensation” and that she had “a strong suspicion it is not.” After a subsequent nerve conduction study was done, Dr. Hall opined that the results were “consistent with a mild bilateral carpal tunnel syndrome.” Exhibit 8.
On July 27, 2009, the claimant reported to her employer that she had developed pain and swelling of her hands, arms, and upper arms, with numbness and tingling in her fingers. The ALJ found that the claimant reported the pain and swelling of her hands and
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arms to her employer on September 27, 2009. The employee incident report is dated July 27, 2009, however. Regardless, the discrepancy in dates is inconsequential to this order.
On December 1, 2009, Dr. Fall treated the claimant’s work-related pelvic fracture. In her report, Dr. Fall opined that the claimant’s CTS is not work-related. Exhibit F. The claimant has not worked since September 1, 2009, the date she suffered her work-related pelvic fracture.
A hearing was held on January 11, 2011, on whether the claimant’s CTS, right worse than left, was work-related. Tr. at 6. At the hearing, the parties submitted a Job Analysis Report, and both parties stipulated that the report provided an accurate job description of the claimant’s job. Tr. at 5. The Job Analysis states that the claimant could ride on the mule or walk next to it and operate it while walking. The Analysis states that to move the mule forward, “the hand(s) grasp the handle” and they then rotate the handle forward. Exhibit 3 at 15. While the mule is moving forward at a 90 degree angle from the arm, the hand remains in this position. The hand/wrist is cocked back when the mule is backed up at a 90 degree angle, and this activity is performed for 50% of the claimant’s work day. The Analysis states that the mule also can be driven “with the operator walking beside it by pushing on a button on the inside of the driver area” but that the majority of the time the claimant was observed on the mule driving it with the hand controls while riding on it. Exhibit 3 at 15-16. The Analysis further states that “[t]he hands are used for the following activities: driving the mule, picking up trash, mopping, sweeping and emptying trash.” Exhibit 3 at 15. During the hearing, the claimant testified that she drove the mule “about five” hours per day of her eight hour shift, and of those five hours, she spent 50% going forward and 50% going backwards. Tr. at 22.
Dr. Watson testified on behalf of the respondents. Dr. Watson analyzed causation under the Medical Treatment Guidelines. Dr. Watson testified that the claimant’s health related factors, including her age, sex, high body mass index, hypertension, cholesterol disorder, and elevated glucose measurements predisposed her to CTS. Tr. at 57-58. Dr. Watson opined that it was his opinion within a reasonable degree of medical probability that the claimant’s occupation did not cause her bilateral CTS. Tr. at 64. Dr. Watson further testified that the pressures that can cause damage to the median nerve include wrist position being in excess of about 40-45 degrees. Tr. at 59. He testified that the claimant’s hand position for using the mule did not cause enough pressure on the nerve to cause damage, reasoning that the claimant’s wrist position on the mule appeared only to be approximately 30-40 degrees. Tr. at 60.
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Additionally, the claimant submitted the deposition testimony of Dr. Hughes. In his deposition, Dr. Hughes opined that the claimant had primary risk factors for CTS, including being female, being older, being obese, and having a history of family diabetes. Dr. Hughes testified that these were sufficient to cause CTS independent of any industrial exposure. Hughes Depo. at 24. Nevertheless, Dr. Hughes opined that the claimant’s occupational exposure led to the development of her CTS. Hughes Depo. at 13-14, 23. Dr. Hughes further opined that the occupational risk factor in the claimant’s Job Analysis for developing CTS involved use of the grip-twist controls on the mule. Hughes Depo. at 20-21. Dr. Hughes also testified that the claimant’s shift was from 8:30 a.m. to 5:00 p.m. with multiple breaks. Hughes Depo. at 10.
On May 5, 2011, the ALJ entered his findings of fact, conclusions of law, and order. In his order, the ALJ denied and dismissed the claimant’s claim for workers’ compensation benefits for her bilateral CTS condition. In particular, the ALJ found that the claimant operated the mule during 50% of her shift, or 3.75 hours of the day, giving the claimant time for multiple breaks and lunch. The ALJ credited the claimant’s testimony that she used the grip-twist controls to operate the mule for less than two hours per shift. The ALJ found that the claimant alternated between riding and walking alongside the mule, thus, using the grip-twist hand control while riding on the mule less than two hours per shift, and walking alongside the mule and pressing a button for another two hours per shift. The ALJ credited Dr. Watson’s medical opinion as persuasive in finding it more probably true that the claimant’s use of the grip-twist controls on the mule involved flexion and extension of the wrists at less than 45 degrees and for less than 2 hours per shift. Further, crediting the opinions of both Dr. Hughes and Dr. Watson, the ALJ found that the claimant has non-occupational risk factors that would cause her to develop CTS regardless of occupational exposure, including that she is female, older, obese, and has a family history of diabetes. The ALJ, therefore, found that the claimant’s occupational exposure was insufficient to cause, intensify, or reasonably aggravate the development of her CTS.
I.
On review, the claimant argues that the ALJ’s finding that the claimant did not have sufficient work place exposure to cause, aggravate, or accelerate her carpal tunnel condition, is not supported by the evidence. The claimant specifically argues that there is no evidence supporting the ALJ’s key finding that the operation of the hand control was used differently when she was walking beside the mule than when she was riding the mule. The claimant reasons that Dr. Hughes testified that the claimant was required to grasp the handle forcibly and there was a trigger that allowed for the control of speed. The claimant, therefore, argues that the ALJ’s finding that the claimant did not work or use the hand control for over two hours of the day is not supported by the evidence and
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that this was one of the key findings that the ALJ relied upon when denying the claimant’s claim. We perceive no error in the ALJ’s findings or conclusions.
The question of whether the claimant has proven a compensable injury is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). The claimant must demonstrate by a preponderance of the evidence that she sustained an injury arising out of and in the course of employment, and that the injury is the proximate cause of the disability and need for treatment. Section 8-41-301(1)(b) (c); Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999); § 8-43-201, C.R.S.
Additionally, “[s]ubstantial 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 evidence or contrary inferences.” F.R. Orr Construction v. Rinta, 717 P.2d 965, 968 (Colo. App. 1985) (quoting Rathburn v. Industrial Commission, 39 Colo.App. 433, 566 P.2d 372 (1977)). Further, it is the sole prerogative of the ALJ to determine the credibility and probative weight of conflicting evidence. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997). Importantly, in expressing findings of fact concerning causation, the ALJ is not held to a standard of absolute clarity. Rather, it is sufficient for the ALJ to render findings concerning the evidence which he finds determinative of the issues involved, and we must presume conflicting evidence was rejected. See Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Here, we have reviewed the ALJ’s findings of fact and the evidence in the record. The record contains substantial, albeit conflicting, evidence to support the ALJ’s findings and conclusion that the claimant’s occupational exposure was insufficient to cause, intensify, or reasonably aggravate the development of her CTS. Initially, to the extent the claimant argues that there is no support for the ALJ’s finding that the mule was run by pressing a button while walking next to it, the Job Analysis as well as the claimant’s testimony, support this finding. As detailed above, the Job Analysis was admitted into evidence, and it stated that the mule can be driven “with the operator walking beside it by pushing on a button on the inside of the driver area.” Exhibit 3 at 15-16. Additionally, the claimant also testified that to make the mule go faster, she would have to use her thumb. Tr. at 21. Moreover, the ALJ specifically credited the claimant’s testimony that she used the grip-twist controls to operate the mule for less than two hours per shift. The ALJ also credited Dr. Watson’s medical opinion as persuasive in finding it more probably true that the claimant’s use of the grip-twist controls on the mule involved flexion and extension of the wrists at less than 45 degrees and for less than 2 hours per shift, and that this was insufficient exposure to cause, intensify, or aggravate her CTS. Further, the ALJ credited both Dr. Hughes’ and Dr. Watson’s opinions that the claimant has non-occupational
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risk factors that would cause her to develop CTS, including that she is female, 66 years old, obese, with a family history of diabetes. Although Dr. Hughes testified that the claimant’s occupational exposure caused the development of her CTS, the ALJ was not required to credit this testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970).
Moreover, the claimant argues that Dr. Watson engaged in a faulty analysis or relied upon erroneous factors from a new medical study when arriving at his medical opinions regarding the claimant’s awkward wrist position and her development of CTS. In particular, the claimant contends that Dr. Watson testified that the new study required 45 degrees of wrist flexion for at least two hours in order to cause pressure on the median nerve which leads to development of CTS. The claimant asserts, however, that based upon the testimony of Dr. Hughes, the new study only required 30 degrees of wrist flexion and there was no threshold time period for the nerve to become impinged and the development of CTS as a consequence. It is the ALJ’s sole responsibility to weigh the evidence and resolve conflicts in the evidence. We must presume, therefore, that the ALJ resolved these conflicts in favor of Dr. Watson and against Dr. Hughes, and we are required to defer to the ALJ’s determinations. Cf. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991) (ALJ’s credibility determinations adequately informs reviewing court how ALJ resolved conflicts in the evidence). We also add that in expressing his findings of fact concerning causation, it was sufficient for the ALJ to render findings concerning the evidence which he found as determinative of the issues involved, and we must presume conflicting evidence was rejected See Magnetic Engineering Inc. v. Industrial Claim Appeals Office, supra.
II.
Next, the claimant argues that if her CTS was not solely related to her conditions of employment, then a determination needs to be made whether the conditions of her employment aggravated or accelerated her pre-existing non-industrial condition. The claimant contends that the ALJ’s findings are insufficient to allow appellate review of whether the cause of the claimant’s injury is industrial in origin or whether the occupational disease has two causes and an apportionment evaluation would be appropriate. Again, we perceive no error in the ALJ’s findings and conclusions.
As the claimant argues, the mere existence of a preexisting condition does not defeat compensability if the work-related injury “aggravates, accelerates, or combines with a disease or infirmity to produce the disability for which workers’ compensation is sought.” H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). Whether the claimant’s employment has caused a substantial permanent aggravation of her condition is a question of fact for the ALJ. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993). Accordingly, we must uphold the ALJ’s determinations if supported by
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substantial evidence in the record. Section 8-43-301(8), C.R.S. Monfort Inc. v. Rangel, supra. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ `s resolution of conflicts in the evidence as well as plausible inferences which he drew from the evidence Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here, contrary to the claimant’s argument, the ALJ did, in fact, enter a finding on whether the claimant’s CTS was aggravated by her employment. The ALJ specifically found that the “[c]laimant failed to show it more probably true than not that her work activities . . . intensified, or reasonably aggravated her CTS.” The ALJ specifically credited “the medical opinion of Dr. Watson and Dr. Hughes in finding claimant has inherent genetic risk factors and disease factors that predispose her to develop CTS, irrespective of any physical activity factor.” Findings at 5 ¶ 16. These findings support the conclusion that the claimant failed to show it more probably true than not that her work activities intensified or reasonably aggravated her CTS. The claimant’s arguments do not persuade us to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 5, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Kris Sanko
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LILIAN FLORES, 4796 FILLMORE STREET, DENVER, CO, (Claimant)
SAFEWAY STORES, INC., Attn: MS. SUE POLYAKOVICS, PHOENIX, AZ, (Employer)
THE FRICKEY LAW FIRM, Attn: JANET L. FRICKEY, ESQ., LAKEWOOD, CO, (For Claimant)
THOMAS, POLLART MILLER, LLC, Attn: STACY J. TARLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents)
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