IN RE AVALOS, W.C. No. 4-327-264 (11/03/00)


IN THE MATTER OF THE CLAIM OF HECTOR AVALOS, Claimant, v. POUDRE VALLEY HOSPITAL, Employer, and SELF-INSURED, C/O SUPPORT SERVICES, INC., Insurer, Respondent.

W.C. No. 4-327-264Industrial Claim Appeals Office.
November 3, 2000

FINAL ORDER
The self-insured respondent seeks review of a final order of Administrative Law Judge Gallegos (ALJ) awarding temporary disability and medical benefits for the claimant’s bilateral plantar fasciitis. The respondent contends the record lacks substantial evidence to support the ALJ’s conclusion that the claim for benefits was filed within the two-year statute of limitations found in § 8-43-103(2), C.R.S. 2000. We affirm.

The claimant was employed as a janitor, a job which required him to be on his feet for up to 8 hours per day. As early as 1991, the claimant began to experience pain in his feet. In September 1994 the claimant consulted his personal physician, Dr. DeYoung, who noted increasing discomfort in the heel of the left foot of two months duration. Dr. DeYoung also noted the claimant’s “greatest discomfort” occurred when he got out of bed, and the “only real relief is when he can get off his feet.” Dr. DeYoung referred the claimant to a podiatrist who performed a plantar fascia release of the left foot in January 1995. The ALJ found that following this surgery the claimant was “off work and off his feet and his foot pain decreased.”

The claimant returned to work as a janitor until December 31, 1996, when he was examined by Dr. Kaiser. Dr. Kaiser diagnosed bilateral plantar fasciitis and removed the claimant from work. On January 29, 1997, Dr. Kaiser stated the claimant’s symptoms were better when not working, and released the claimant to sedentary employment.

In February 1997, the claimant submitted to the employer an “Employee First Report of Incident,” in which he alleged the condition of his feet was work-related. The claimant wrote that he initially believed the pain “was my problem,” but was referred to a specialist and advised to stay off his feet. The employer then filed a notice of contest dated February 17, 1997.

The respondents raised a statute of limitations defense under § 8-43-103(2). However, the ALJ concluded the claimant did not recognize the probable compensable nature of his condition until December 1996, when he was restricted from employment by Dr. Kaiser. The ALJ concluded that prior to December 1996 the claimant, as a reasonable person, did not recognize the causal relationship between plantar fasciitis and the hazards of the employment.

On review, the respondent contends there is not substantial evidence to support the ALJ’s conclusion the claimant did not recognize the probable compensable nature of the plantar fasciitis until December 1996. In support, the respondent argues the claimant never testified that removal from work in 1996 triggered his recognition of a causal relationship between his condition and the hazards of the employment. Instead, the respondent argues the ALJ was compelled to conclude the claimant recognized the requisite causal relationship in 1994 because he experienced pain while working, but relief when he was off his feet. Alternatively, the respondent argues the claimant recognized the probable compensable nature of his condition in January 1995 when he was off work for surgery. We are unpersuaded by these arguments.

For purposes of § 8-43-103(2), the claimant sustains an “injury” and triggers the running of the statute of limitations when, as a reasonable person, he should recognize the nature, seriousness, and probable compensable character of the injury City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The requirement that the claimant recognize the probable compensable character of the injury contemplates the claimant has sufficient knowledge to appreciate a causal relationship between the employment and his medical condition. Saxton v. King Soopers, Inc., W.C. No. 4-200-777 (March 11, 1997); 7 Larson’s Workers’ Compensation Law, § 78.41 (f). The mere fact that the claimant suffers symptoms following an identifiable industrial injury does not necessarily compel the conclusion that the claimant recognizes the causal relationship between the symptoms and the injury. City of Boulder v. Payne, supra.

The question of when the claimant, as a reasonable person, should recognize the probable compensable nature of the injury is a question of fact for determination by the ALJ. See Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving in Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We note the ALJ is not held to a standard of absolute clarity in expressing findings of fact so long as the basis of the order is clear. Further, the ALJ is not required to discuss and reject every piece of evidence which she finds to be unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1380, June 8, 2000).

We conclude the record contains substantial evidence to support the ALJ’s finding the claimant did not recognize the causal relationship between plantar fasciitis and his employment until December 1996. The ALJ plausibly interpreted the Employee First Report of Incident as the claimant’s statement that he did not understand the relationship between his condition and the employment until Dr. Kaiser removed him from work approximately 1 1/2 months prior to the report. (Finding of Fact 3). As the ALJ recognized, this interpretation of the evidence was corroborated by the reports of Dr. Kaiser, who was the first physician to emphasize a relationship between the claimant’s employment and the plantar fasciitis by restricting the claimant from returning to work as a janitor. Indeed, Dr. DeYoung’s note of September 2, 1994, does not state there is a direct causal relationship between the claimant’s employment and his condition, although the doctor did mention the claimant’s symptoms lessened when he was off his feet. Significantly, Dr. DeYoung was more concerned about the claimant’s weight than his work, and stated “obesity is obviously contributory.”

The respondent’s assertion notwithstanding, the ALJ was not required to infer the claimant understood that a causal relationship existed between his symptoms and employment merely because he experienced the symptoms at work, or because he was apparently off work for a period of time following the 1995 surgery. The respondent points to no evidence that any physician ever permanently restricted the claimant from performing work as a janitor prior to December 1996, and we find no such evidence in the record. In fact, the claimant did return to work after the surgery, and might reasonably have concluded he would not cause additional harm by doing so. Moreover, the mere fact the claimant experienced symptoms at work does not necessarily lead to the conclusion he reasonably understood work was causing or aggravating the underlying medical condition. Indeed, the respondent presented expert medical opinion from Dr. Orent that the claimant’s plantar fasciitis was caused by a preexisting, systemic arthritic condition, and that the claimant’s work contributed nothing more than a “transient aggravation” of the underlying “symptom complex.” As stated in City of Boulder v. Payne, “it was not contemplated by the legislature that a workman have greater medical perception than a physician” concerning the cause of his symptoms. 426 P.2d at 194. Thus, we conclude the evidence cited by the ALJ, and the plausible inferences she drew from it, support the conclusion the claimant did not recognize the probable compensable nature of his injury until December 1996. The mere fact that other findings and inferences were possible affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).

IT IS THEREFORE ORDERED that the ALJ’s order dated February 2, 2000, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed November 3, 2000 to the following parties:

Hector Avalos, 531 N. Loomis, Ft. Collins, CO 80521

Yvonne Chudd, Poudre Valley Hospital, 1024 S. Lemay Ave., Ft. Collins, CO 80524-3998

Denise Groves, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513

Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)

Anne Smith Myers, Esq., and Benjamin E. Tracy, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)

BY: A. Pendroy