W.C. No. 4-626-841.Industrial Claim Appeals Office.
June 11, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated November 22, 2006 that denied the claimant’s clam for compensation and benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. In 1971 the claimant sustained injuries in a motor vehicle accident that resulted in the placement of a plastic prosthesis in the left portion of her forehead. Due to the 1971 car accident the claimant underwent tattooing of her eyebrows on July 10, 2004. In 2003 the claimant sought medical treatment due to swelling and headaches. In 2003 an MRI showed deposits of fat within the sinus related to the prior surgery. The claimant’s duties for the employer included watering and maintaining the plants in the outside lawn and gardening department. On August 4, 2004, while watering plants the claimant was stung by a bee or wasp under the left eyebrow. The claimant’s left eye swelled and she applied ice. On August 5, 2004 the claimant sought medical treatment with her personal physician, Dr. Chisholm. Dr. Chisholm noted that the claimant had her left eyebrow tattooed a few days before and noted swelling in the left brow forehead and eyelid. Dr. Chisholm’s note does not reference the bee sting on August 4, 2004. On September 1, 2004 the claimant completed workers’ compensation forms with the employer and was referred to Dr. Reiter. Dr. Reiter stated that he was unsure whether the swelling and problems were due to the wasp sting or to possible infection from tattooing.
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An MRI was done on September 2, 2004 which was contrasted to a prior study of November 19, 2003, and which showed that the fluid collection within the left frontal sinus had increased in size and probably represented a mucus retention cyst. At that time Dr. Solsberg also noted that the degree of displacement of the prosthesis looked slightly worse compared to the prior study. Dr. Mobley performed a craniotomy draining the left front sinus on September 10, 2004. This was followed by two other craniotomies as a result of recurrent episodes of swelling and pain.
Dr. Mobley opined that the reason for the craniotomy was the development of a fluid collection underneath the prosthesis, which was caused by the bee sting and was not secondary to the tattooing. Dr. Orent performed an independent medical evaluation and opined that the patient had extensive previous treatment of her sinuses up to and including surgery in the past on this area and that this predisposed her towards sinusitis and other swellings of the sinuses.
The ALJ found that the claimant’s fluid collection in the sinus cavity pushing outward on the prosthesis, which necessitated the craniotomy and subsequent medical treatment, was not causally related to the August 4, 2004, bee sting. Therefore, the ALJ denied the claim for compensation and benefits.
On appeal the claimant first contends that the ALJ misstated the burden of proof. The claimant points out that the ALJ in her order stated, “Having considered all the evidence, the ALJ concludes that Claimant failed to prove by a preponderance of the evidence that the fluid collection in the sinus cavity pushing outward on the prosthesis which necessitated the craniotomy on September 10, 2004, and subsequent medical treatment and disability is not causally related to the August 4, 2004, bee/wasp sting.” (emphasis added.) Conclusions of Law at 5, ¶ 4.
However, we agree with the respondent’s argument that the word “not” was included in the sentence as a result of a typographical or clerical error. When read in its entirety, it is clear from the order that the ALJ recognized that the claimant’s burden was to show a causal relationship between the sting and the claimant’s need for medical treatment and disability benefits. In our opinion the ALJ did not place the burden on the claimant to show that such a causal relationship did “not” exist.
The ALJ noted in her conclusions of law that a claimant has the burden of proving entitlement to benefits by a preponderance of the evidence. Conclusions of Law at 5, ¶ 1. The ALJ further noted that it was the claimant’s burden to prove by a preponderance of the evidence that there is a direct causal relationship between the employment or accident and the injuries. Conclusions of Law at 5, ¶ 3. Under these circumstances, we are persuaded that the typographical error in putting the word “not” in the conclusion of law is harmless and should be disregarded. Section 8-43-310, C.R.S. 2006; A R Concrete
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Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial should be disregarded).
The claimant next contends the ALJ misapprehended the essential issue in the case, arguing that she was not required to prove that the bee sting caused the fluid collection in her sinus. Rather, she asserts that it was only necessary that she prove that the sting aggravated her pre-existing condition. The claimant argues that the ALJ failed to make findings and conclusions pertinent to this legal theory that the compensable injury aggravated her condition. We disagree.
The ALJ acknowledged that Dr. Mobley testified that after the bee sting the fluid collection under the prosthesis grew in size and that at least the inflammatory process could have been incited by the insect bite. However, the ALJ also noted that the doctor conceded that he could not conclusively prove that causal connection. Findings of Fact at 3, ¶ 13. However, the ALJ made, with record support, other findings considering Dr. Mobley’s testimony. The ALJ found that Dr. Mobley did not have a specific pathophysiological explanation for the increased fluid and other symptoms suffered by the claimant. Mobley Depo. at 31. The ALJ also found that Dr. Mobley’s opinion was based primarily on the sequence and timing of events, and that he conceded that he did not know conclusively the cause of the fluid collection. Mobley Depo at 45-46.
In addition the ALJ noted other opinions in the medical record. Dr. Reiter stated that he was unsure if the swelling was due to a wasp sting or to possible infection from the tattooing. Exhibit 6 at 42. Dr. Orent also noted that the claimant had multiple “compounders” or reasons for her sinus problems, most specifically a history of chronic sinusitis and surgeries. Orent Depo. at 14. Dr. Orent also opined that from a causal perspective the explanation for the fluid collection was far more likely a failure in sinus drainage or a cyst rather than some factor such as an insect bite external to the sinuses. Orent Depo at 14. We note that the ALJ expressly found Dr. Orent’s opinions as to causation more credible and persuasive than Dr. Mobley’s.
It is well-established that a compensable injury may be the result of an industrial aggravation of a pre-existing 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); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988); Henrie v. Henrie Chiropratic, Inc. W. C. No. 4-582-442 (November 9, 2004). The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and we must uphold the ALJ’s findings if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2004; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
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However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence she considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
Here, the record satisfactorily establishes that the ALJ was aware of the relevant legal and factual issues, and we perceive no error in her order. We note that at the commencement of the hearing the claimant’s attorney stated, with the concurrence of the respondents, that the “principal issue in this case is medical causation.” Tr. at 4. The facts, especially those concerning the claimant’s preexisting condition, were relatively undisputed and all parties appeared to agree that the claimant suffered from preexisting problems with her sinuses. Moreover, the claimant thoroughly and extensively argued her position on causation in a lengthy position statement, filed following the close of the hearing. While admittedly the ALJ did not expressly mention in her order the issue of the aggravation of a pre-existing condition, she did find that the claimant failed to prove by a preponderance of the evidence that the fluid collection in the sinus cavity which necessitated the medical treatment was causally related to the insect bite. In our view, given the record in this matter, this factual finding implicitly includes the finding that the bee sting did not aggravate the claimant’s pre-existing condition. Since this finding is supported by the record we perceive no basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 22, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
Curt Kriksciun
Thomas Schrant
Barbara Goldhammer 116 Dorset Court Castle Rock, CO. Lowe’s Home Improvement, Mile Road Parker, CO. Grant Jenkins, Denver, CO. Buescher, Goldhammer, Kelman Dodge, P.C. Joseph M. Goldhammer, Esq. Denver, CO (For Claimant).
White Steele, P.C. Ted A. Krumreich, Denver, CO (For Respondents).
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