W.C. No. 4-728-940.Industrial Claim Appeals Office.
February 9, 2010.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated September 3, 2009, that denied and dismissed the claimant’s claim for workers’ compensation benefits. We affirm.
The claimant worked for the employer as a deli manager. The claimant testified that on June 26, 2007 she slipped and fell on a wet floor behind the deli counter and injured her back. The ALJ found that although the claimant experienced an incident in the deli her employment did not aggravate, accelerate, or combine with her pre-existing condition to produce a need for medical treatment. The ALJ found that her need for medical treatment was more likely caused by the natural progression of her chronic back condition. The ALJ dismissed her claim and the claimant brings this appeal.
The petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S. 2009. Moreover, the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her back injury arose out of and in the course of her 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). Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997).
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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. 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 ALJ made the following findings of fact with record support. The record is replete with evidence that the claimant suffered an extensive history of chronic, degenerative lower back problems. Tr. at 52-77; Tr. at 99-103. More than a year prior to the claimant’s work incident Dr. Donner characterized her condition as progressive back and right buttock pain that was consistent with degenerative disc disease from L4 to S1. Exhibit F at 18. He noted that her symptoms were significant and interfered with her normal daily activities. Exhibit F at 18. Subsequent to the June 26, 2007 incident Dr. Donner reiterated that the claimant suffered from “chronic progressive disabling back pain consistent with degenerative disc disease at L3-4 and L5-S1 and a degenerative spondylolistheis at L4-L5.” Exhibit F at 24. The claimant subsequently underwent three-level fusion surgery for her condition on January 7, 2008. Exhibit F at 26.
The ALJ found the testimony and reports of Dr. Bernton to be persuasive. Dr. Bernton explained that in his opinion the fall did not cause an aggravation of her preexisting condition. He based his opinion on an evaluation of her medical treatment before and after her slip and fall and a consideration of her MRI scans, pain medications and pain levels. Exhibit H Tr. at 99 104-105. Dr. Bernton opined that the claimant’s condition was clearly progressing prior to her slip and fall and her necessity for continued treatment was not materially different from the medical treatment she would have required if the slip and fall had not occurred. Tr. at 99-100. Dr. Bernton explained that in the period preceding the claimant’s slip and fall, she experienced worsening back pain that required a marked increase in narcotic dosage. Tr.102 104. After the slip and fall, the claimant’s medications stabilized until her surgery. Tr. at 104. Finally, the MRI scans revealed that the claimant’s underlying degenerative condition did not change as a result of her June 26, 2007 slip and fall. Tr. at 102. Instead, MRIs before and after the slip and fall revealed changes consistent with a “degenerative arthritic process” and did not reflect any acute lumbar disc protrusions or extrusions. Tr. at 102. The ALJ concluded that the claimant’s need for medical treatment was not caused by the
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aggravation of a pre-existing condition while working for the employer, but was more likely caused by the natural progression of her chronic back condition. Exhibit H at 37.
We recognize that 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). However, here the ALJ found that the need for medical treatment was not caused by the aggravation of a pre-existing condition, and in our opinion the opinions of Dr. Bernton, the medical record including reports for Dr. Donner and lay testimony support the ALJ’s determination. As noted above, we must uphold the decision where, as here, substantial evidence supports the ALJ’s determination. Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to benefits and compensation. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 3, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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FRANKIE STORY, FORT COLLINS, CO, (Claimant).
SAFEWAY, INC., Attn: SUZANNE POLYAKOVIC, DENVER, CO, (Employer).
RING ASSOCIATES, PC, Attn: BOB L RING, ESQ., FORT COLLINS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: STACY J TARLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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