IN RE ARAGON, W.C. No. 4-543-782 (9/24/04)


IN THE MATTER OF THE CLAIM OF EDITH ARAGON, Claimant, v. CHIMR d/b/a PENROSE ST. FRANCIS HOSPITAL, and/or GOODWILL INDUSTRIES OF COLORADO SPRINGS, and/or MEMORIAL HOSPITAL, Employers, and PREFERRED PROFESSIONAL INSURANCE COMPANY, and/or NORTH RIVER INSURANCE COMPANY and/or SELF-INSURED, Insurers, Respondents.

W.C. Nos. 4-543-782, 5-465-295, 4-581-659.Industrial Claim Appeals Office.
September 24, 2004.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant failed to prove a compensable injury and therefore, denied the claim for workers’ compensation benefits. We affirm.

The claimant was employed as a housekeeper at the Penrose St. Francis Hospital (Penrose) on November 9, 2000 when she was struck by a bed she was moving. The claimant testified she heard a “pop” in her back and felt pain radiating into her left leg. (May 6, 2003, p. 17). The claimant reported the injury but did not request treatment throughout the remainder of her employment at Penrose. In explanation, the claimant stated that she was afraid Penrose would discharge her if it knew she had been injured and wanted medical treatment. (Tr. October 7, 2003, p. 51). On April 4, 2001, the claimant voluntarily quit her employment at Penrose for reasons unrelated to the November 9 incident.

On January 11, 2002, the claimant was hired by Goodwill Industries of Colorado Springs (Goodwill) and assigned to a housekeeping position at Memorial Hospital (Memorial). The claimant alleged she developed an occupational disease affecting her low back condition while working for Goodwill. However, the claimant performed her regular duties at Goodwill without complaint and applied for permanent employment at Memorial. The claimant also alleged she reinjured her back while lifting 50 pounds during a pre-employment physical at Memorial on April 4, 2002.

In May 2002, the claimant filed these claims for workers’ compensation benefits. The claimant then sought medical treatment for complaints of low back pain on June 11, 2002.

Dr. Schwender and Dr. Jenks opined the claimant’s low back condition was not caused by the November 9 incident. In contrast, Dr. Hall and Dr. Griffis opined the claimant’s low back complaints are a consequence of the November 9 incident, which was not aggravated by the claimant’ subsequent employment at Memorial. However, Dr. Griffis diagnosed the November incident as a minor strain.

The ALJ found the claimant suffered an industrial accident on November 9, 2000, but no “injury” as that term is defined in the Workers’ Compensation Act. Further, the ALJ determined the conflicting evidence failed to establish the claimant developed an occupational disease or suffered any subsequent back injury during the pre-employment evaluation on April 4. In support, the ALJ found the claimant did not report any back problems, had normal lumbar range of motion, and passed the 50 pound lifting test during the pre-employment examination. Therefore, the ALJ determined the claimant failed to prove a causal connection between her condition and the employment sufficient to support an award of workers’ compensation benefits.

On review the claimant contends there is not substantial evidence to support the ALJ’s findings fact. To the contrary, the claimant contends the evidence compels a finding her low back problems are the natural progression of the November 9, 2000 industrial accident and that her failure to request medical treatment is reasonably explained by her fear of losing her employment. We perceive no reversible error.

The Workers’ Compensation Act creates a distinction between the terms “accident” and “injury.” The term “accident” refers to an “unexpected, unusual, or undesigned occurrence.” Section 8-40-201(1), C.R.S. 2003. In contrast, an “injury” refers to the physical trauma caused by the accident. In other words, an “accident” is the cause and an “injury” is the result. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).

To recover workers’ compensation benefits, the claimant must prove by a preponderance of evidence that the injury for which she seeks medical treatment arose out of and in the course of employment. Proof by a preponderance of the evidence requires the claimant establish the existence of a compensable injury is more probable than its nonexistence. See Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979).

The question of whether the claimant met the burden of proof to establish causation is one of fact for determination by the ALJ Faulkner v. Industrial Claim Appeals Office, supra; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). We must uphold the ALJ’s determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2003. Under this standard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Further, the ALJ findings may be reasonable inferences from circumstantial evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).

We have reviewed the ALJ’s findings of fact and the record. There is ample evidence to support the ALJ’s factual determinations. Further, the ALJ reasonably inferred that because the claimant did not ask for medical treatment when she resigned from Penrose or during the following year, it is unlikely she refrained from requesting medical treatment solely because she feared losing her employment at Penrose.

Moreover, the ALJ’s findings support a conclusion the claimant proved a low back problem but failed to prove that it was more likely than not that the problem was caused by employment with Penrose or Goodwill. Therefore, the ALJ did not err in denying the claim.

IT IS THEREFORE ORDERED that the ALJ’s order dated, May 6, 2004, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

________________________________ Kathy E. Dean
________________________________ Robert M. Socolofsky

Edith Aragon, Colorado Springs, CO, Hazel Mullens, Erlanger, KY, Shirley O’Meara, Colorado Springs, CO, Goodwill Industries of Colorado Springs, Colorado Springs, CO, Vicki Alexander, Colorado Springs, CO, Preferred Professional Insurance Company, Erlanger, KY, North River Insurance Company, c/o Tricia Finley, Crum
Forster, Plano, TX, James A. May, Esq., Colorado Springs, CO, (For Claimant).

Susan K. Reeves, Esq., Colorado Springs, CO, (For Respondents CHIMR d/b/a Penrose St. Francis Hospital and Preferred Professional Insurance Company).

Brett Parnes, Esq., Denver, CO, (For Respondents Goodwill Industries of Colorado Springs and North River Insurance Company).

Gregory B. Cairns, Esq., Englewood, CO, (For Respondent Memorial Hospital).