W.C. No. 4-653-473.Industrial Claim Appeals Office.
June 7, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ), which determined that they were responsible for temporary total disability (TTD) benefits and all reasonably necessary and related medical expenses for a work-related injury. We affirm.
The ALJ made several findings of fact in support of her award, which are summarized as follows. The claimant worked as an appliance technician. He limped as a result of four left hip replacements, none of which was due to an industrial injury. On June 8, 2005, the claimant felt a pop in his hip while getting out of a company truck he had been driving and he fell. The claimant reported to another employee that he was injured during a service call. The day after the claimant fell, the owner of the employer became aware of the claimant’s allegation of being injured at work and he subsequently spoke to the claimant about the alleged injury on June 9, 2005. At that time, the claimant reported his injury as work-related, but he was not directed to a medical provider. The claimant did not work the day following the incident. On June 9, 2005, the claimant went to an emergency room and was diagnosed as having a left hip prosthetic shift.
The claimant underwent a left hip replacement using a prosthetic hip on June 13, 2005, but has not been able to return to work. The surgeon, Dr. Swenson, opined that the claimant’s ongoing job duties aggravated his pre-existing hip condition. He also opined that the medical treatment provided to the claimant after June 8, 2005, was reasonable and necessary to cure and relieve the effects of the work-related injury, and the ALJ made corresponding findings. She also found the surgeon to be an authorized treating physician because the respondents failed to designate a medical provider. Dr. Pitzer performed an independent medical examination and implicitly opined that the claimant sustained an injury at work, which opinion concerning causation the ALJ found to be credible. Dr. Hughes provided another independent medical examination and opined that the claimant’s hip prosthesis was loosened at the time he exited his vehicle on June 8 and that he sustained a work-related injury to his left hip. The ALJ also credited Dr. Hughes’s opinion as credible.
The ALJ concluded that the claimant proved he sustained a work-related injury on June 8. In passing, the ALJ commented that a disability is compensable even if a preexisting condition caused the accident if the employment contributed to accident. She also rejected the respondents’ assertion that they were not liable for the hip injury because it concerned a prosthetic device. She further declined to apportion the medical and disability benefits.
I.
The respondents argue that the claimant failed to establish a compensable injury rather than mere damage to a prosthetic device. We disagree. No benefits flow to the victim of an industrial accident unless the accident results in a compensable “injury.” A compensable injury is one which requires medical treatment or causes a disability. Furthermore, it is well established that it is the claimant’s initial burden to prove a compensable injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The determination of whether the claimant proved an injury which required medical treatment is one of fact for the ALJ F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2005. 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 based on reasonable inferences from circumstantial evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
We are not persuaded that the ALJ erred in finding the claimant sustained a compensable injury under the circumstances. A preexisting disease or infirmity does not disqualify a claimant from receiving compensation “if the employment aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which workers’ compensation is sought.” H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990).
The ALJ found the claimant established that he sustained a compensable injury involving his hip, and credited both the claimant’s testimony and the medical evidence. Findings of Fact, Conclusions of Law, and Order (Order) at 5, ¶¶ 1, 3. This finding is supported by the record as indicated by the following examples. The claimant testified that he heard a popping sound when he exited a company truck and fell to the ground, which resulted in significant pain. Tr. at 22-24, 26-28, 41, 51, 53. Dr. Hughes testified that the claimant sustained a hip prosthesis strain on June 8th, 2005, in the nature of an injury, and that the claimant’s subsequent surgery and medical care were related to that injury. Hughes Deposition at 34. Dr. Swenson opined that the claimant’s ongoing job duties aggravated his preexisting hip condition. Exh. 2 at 6.
Moreover, the ALJ did not find that a preexisting condition precipitated the claimant’s injury. Therefore, the “special hazard” requirement is inapplicable. See Bastian v. Canon Lodge Care Center, W.C. No. 4-546-889 (August 27, 2003), corrected order issued September 19, 2003.
The respondent’s reliance on Hascek v. CPI Corporation,
W.C. No. 3-699-359, (November 17, 2005), is misplaced. In Hascek we recognized the authority of London Guarantee Accident Co. v. Industrial Commission 80 Colo. 162, 249 P. 642(1926) that damage to a prosthesis does not constitute a “personal injury” within the meaning of the Workers’ Compensation Act. In Hascek the respondents were obligated to and did provide replacement prosthesis. The ALJ found that the ill-fitting prosthesis caused injury to the claimant and we affirmed an award for injuries flowing from the ill-fitting prosthesis. In the present case the claimant felt a “pop” in his hip and fell to the ground. Here, as in Hascek the claimant suffered a personal injury and not just damage to his property.
Furthermore, the compensability of the claimant’s injury is not diminished because it relates to a prosthetic hip replacement See § 8-42-101(1)(b), C.R.S. (2005) (discussing replacement of external prosthetic devices). Cf. Fairchild v. GCR Tire Center,
W.C. No. 4-632-507 (February 2, 2006) (ALJ not persuaded claimant’s hip replacement related to injury). Here, the ALJ found the claimant’s hip surgery effectively flowed proximately and naturally from the injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
In addition, the ALJ was not persuaded that the injury was subject to apportionment. In Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992), the court held that if the claimant proves the conditions of employment have proximately caused or aggravated a disease, the burden of showing the existence and extent of other causes for purposes of apportionment falls on the respondent. Further, the court held that the question of whether the employer has met its burden is a question of fact for the ALJ. The question of whether apportionment is appropriate is a question of fact. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8). The ALJ expressly rejected the respondent’s request for apportionment, finding no previous industrial injury. Order at 7, ¶ 8. The ALJ’s finding appears to be supported by the record. See, e.g., Tr. at 17. Under these circumstances, the ALJ could, and did, find the evidence was insufficient to apportion liability.
II.
The respondents also assert that the ALJ made improper evidentiary rulings that affected her decision on the merits and must be rectified. We disagree. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded). Generally, the Colorado Rules of Evidence govern workers’ compensation proceedings. Section 8-43-210, C.R.S. 2005. C.R.E. 103 (a) provides that “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” The Workers’ Compensation Act itself incorporates a harmless error standard for review of workers’ compensation cases. See §8-43-310, C.R.S. 2005.
The respondents object to the admission of a statement related to a co-employee. At the end of the hearing, the ALJ admitted the statement and allowed the respondents the opportunity to depose the declarant. Tr. at 49-50. The respondents declined to depose the declarant, but they object to the admission of the statement as an admission of a party opponent under CRE 801(d)(2). However, CRE 801(d)(2)(D) recognizes the admissibility of a statement by the party’s agent concerning a matter within the scope of the employment made during the existence of the relationship, and the record reflects that the declarant was an employee of the respondent employer up through the time of the hearing. Tr. at 44. In any event, the ALJ’s finding that the declarant saw the claimant on the date of his injury and he looked to be in pain is essentially cumulative. Consequently, there is no reversible error in its admission.
The respondents also sought to preclude a co-worker from testifying, asserting that her testimony was not fairly disclosed by the claimant in discovery. Section 8-43-207(1)(e), C.R.S. 2005, permits the ALJ to impose the sanctions provided in the rules of civil procedure for “willful failure to comply with permitted discovery.” Exclusion of testimony is a possible sanction for failure to obey an order compelling discovery. C.R.C.P. 37(b)(2). In general, a discovery violation is “willful” if it is intentional, deliberate or manifests a flagrant disregard of discovery obligations. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). The ALJ has broad discretion in determining whether a violation has occurred and, if so, what sanction is appropriate. Shafer Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003). Because the ALJ has broad discretion in resolving these matters, we may only set her order aside if that discretion is abused. An abuse of discretion is only shown where the order is beyond the bounds of reason, such as where it is contrary to the law or unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Here, we perceive no abuse of discretion in the ALJ’s refusal to exclude the testimony of the claimant’s witness. As we read the record, the ALJ implicitly found that if a discovery violation occurred, it was not willful. The ALJ noted that any deviation from the claimant’s discovery responses concerning the witness’s testimony may be subject to impeachment, but did not rise to the level of excluding her testimony. Tr. at 64. Nonetheless, the respondents neither cross-examined the witness or sought to rebut her testimony. Tr. at 73. Under these circumstances, we are unable to conclude that the ALJ abused her discretion in refusing to impose discovery sanctions. The ALJ has wide discretion in determining whether a violation occurred and, if so, the sanction to be imposed. See Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). Because imposition of sanctions is discretionary, we may not interfere unless the order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). Again, the witness’s testimony to the effect that the claimant appeared to be in pain on the date of his injury appears to be cumulative. We decline to disturb the ALJ’s ruling under the circumstances.
IT IS THEREFORE ORDERED that the ALJ’s corrected order dated January 23, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Charles E. Bodine, Littleton, CO, Scott Jorgensen, American Appliances, Denver, CO, Steve Gabriel, Liberty Mutual Insurance Company, Englewood, CO, Chris Forsyth, Esq., Denver, CO, (For Claimant).
Jonathan S. Robbins, Esq., Denver, CO, (For Respondents).