IN THE MATTER OF THE CLAIM OF SCOTT T. SHELTON, Claimant, v. ECKSTINE ELECTRIC COMPANY, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-724-391.Industrial Claim Appeals Office.
August 27, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated May 10, 2010 that found a compensable injury and ordered the respondents to provide reasonable and necessary medical benefits and temporary total disability benefits. We affirm.

This matter comes before us after the Court of Appeals set aside our previous final order and ordered the matter to be remanded to the ALJ for resolution of conflicting findings regarding the cause of the claimant’s injury. We therefore remanded the matter to the ALJ for additional findings clarifying the precipitating cause of the claimant’s injury.

The ALJ’s findings on remand are summarized as follows. The claimant worked as an electrician. He sustained a previous injury to his left knee when he fractured his patella in a fall. The claimant underwent surgery and screws were installed in his left knee. On May 9, 2007 the claimant bent down while inspecting an outlet box, heard a pop in his left knee, and felt severe pain in his knee. An x-ray showed that a screw in the claimant’s patella had broken and that the patella appeared to be coming apart.

Dr. Watkins said that the claimant never had complete pain relief from his 2000 patellar fracture, but was back to a reasonable level of activity with minimal pain and crepitation. Dr. Watkins determined that the claimant suffered a hardware failure in his left patella and suspected the non-union of the patella. A CT scan revealed the non-union of the earlier patellar fracture and Dr. Watkins performed surgery to excise the patellar non-union of the knee.

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A “PA” named Dietz stated that the claimant’s injury was an obvious change in the claimant’s previous open reduction internal fixation to the patella and that the claimant sustained a new injury. The claimant was later released to full duty and resumed his job with the respondent employer on October 30, 2007.

Dr. Zinis stated that the claimant’s previous injury in 2000 resulted in a non-union, or partial healing, of the left patella. He opined that on May 9, 2007 the claimant fractured his left patella in the location of the non-union and aggravated the pre-existing condition of his left knee. The May 9, 2007 incident caused the claimant’s injury and the need for medical treatment. Dr. Zinis could not tell whether the hardware in the claimant’s left knee failed prior to May 9, 2007.

The ALJ found that the claimant established a compensable injury to his left knee. The ALJ found certain medical care to be reasonable and necessary and determined that the claimant was entitled to temporary total disability benefits from May 10, 2007 through October 29, 2007.

The respondents argue that the ALJ’s findings are insufficient to support his determination that the claimant sustained a compensable injury. According to the respondents the claimant’s condition is either due to unexplained circumstances or precipitated by a pre-existing condition. We conclude that the ALJ’s findings are adequate to support the finding of a compensable injury.

As conceded by the respondents 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). The respondents further concede that Dr. Zinis stated that the May 9, 2007 incident fractured the claimant’s left patella in the location of the non-union and aggravated his pre-existing left knee condition. However, the respondents assert that the ALJ failed to identify the mechanism or precipitating cause of the claimant’s injury. The respondents argue that in this case the claimant’s pre-existing condition caused his injury and that there was no special hazard contributing to the claimant’s injury. A “special hazard” of employment is one which increases either the risk of injury or the severity of injury when combined with the preexisting condition, which is the direct or precipitating cause of the injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992) (vehicular travel was a special hazard of employment even though accident was precipitated by preexisting epilepsy); see also Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989) (25-foot scaffold was special hazard to employee whose fall was precipitated by preexisting epilepsy).

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However, the ALJ found that the claimant sustained an injury to his left knee due to his employment conditions when he bent down, heard a pop in his left knee, and felt severe left knee pain. Concerning his prior patellar fracture, the ALJ found that the claimant had returned to a reasonable level of activity with minimal pain and crepitation. The claimant sustained a hardware failure in his left patella and a change in the previous condition of the patella in the nature of a new injury. These findings constitute substantial evidence supporting the ALJ determination that the claimant’s employment was the precipitating cause of his knee injury, rather than his injury being “precipitated” by some preexisting condition brought by the claimant to the workplace.

Thus, contrary to the respondents’ position, we do not read the ALJ’s order as merely finding that the claimant experienced symptoms at work. Instead, the ALJ was persuaded that the claimant sustained a new injury when his patellar hardware failed as the claimant bent down during the inspection of an outlet box. In this regard we note that the finding of a compensable injury following movement by a claimant and a “pop” in a joint is not an isolated occurrence. See, e.g., Songstad v. Dawn Foods, W.C. No. 4-780-380 and W.C. No. 4-782-184 (July 9, 2010) (pop in left knee while twisting on ladder worsened pre-existing symptomatic condition); Melendez v. Weld County School Dist. #6, W.C. No. 4-775-869 (October 2, 2009), aff’d, No. 09CA2272 (Jul. 15, 2010) (not selected for official publication) (pop in left knee when stepping onto bus aggravated, accelerated, or combined with pre-existing condition); and Vigil v. United Parcel Service, W.C. No. 4-724-653 (May 19, 2008), aff’d, No. 08CA1224 (Aug. 13, 2009) (not selected for official publication) (pop in left shoulder drying off signaled onset of occupational disease).

We further conclude that the ALJ’s order complies with the terms of the remand. The remand required the ALJ to resolve the conflict between his earlier findings that the claimant aggravated his pre-existing left knee condition on one hand, but that the claimant’s pre-existing knee condition constituted the precipitating event for his 2007 injury on the other hand. On remand the ALJ resolved the conflict in the claimant’s favor and found that the claimant aggravated his pre-existing left knee condition, thereby resulting in a compensable injury.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 10, 2010 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Curt KriksSciun

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SCOTT T SHELTON, FORT LUPTON, CO, (Claimant).

ECKSTINE ELECTRIC COMPANY, Attn: MS RENEE MCENTEE, PLATTEVILLE, CO, (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).

LAW OFFICES OF REGINA WALSH ADAMS, Attn: REGINA M WALSH ADAMS, ESQ., GREELEY, CO, (For Claimant).

RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents).

RITSEMA LYON, Attn: RONDA K CORDOVA, ESQ., FORT COLLINS, CO, (Other Party).

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