W.C. No. 4-661-649Industrial Claim Appeals Office.
May 23, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated November 6, 2006 that denied and dismissed the claim for compensation. We affirm.
A hearing was held on the issue of whether the claimant sustained a compensable injury. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On September 8, 2005, the claimant suffered a stroke while at work. At approximately 9:15 a.m. on that day the claimant locked himself in the bathroom at the employer’s facility and at 9:40 a.m. a co-worker, Jason Miller, knocked on the bathroom door and received no response. Miller enlisted the aid of another co-worker, Harvey Wiggins, and they again inquired whether the claimant was all right. At approximately 10:10 a.m. the claimant responded that he was all right. After the claimant did not leave the bathroom, Wiggins telephoned his wife and she attempted to call the claimant on his cellular telephone, without receiving any response. At 10:45 a.m. Wiggins again elicited a reply from the claimant, when he asked “what” in response to Wiggins’ calls. At 10:55 a.m. Wiggins successfully picked the lock on the bathroom door and entered, finding the claimant lying on the floor. At 11:10 a.m. Wiggins and Miller drove the claimant to a hospital. The ALJ summarized the opinions of Dr. Healey, although the ALJ rejected those opinions as unpersuasive. Dr. Healey opined that “tissue plasminogen activator (tPA) treatment might have resulted in lessening the disability ultimately incurred by the claimant from his stroke, had the treatment been promptly rendered. Dr. Healey also stated that the
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delay in treating the claimant caused increased disability because of the failure to treat the claimant with the tPA treatment within three hours of the onset of the stroke. However, the ALJ expressly credited the contrary opinion of Dr. Quintero that it was unlikely that prompt treatment would have improved the claimant’s condition following the stroke.
Based upon his factual findings and his weighing of the evidence, the ALJ concluded that the claimant had failed to prove a compensable injury or aggravation of a preexisting condition. The ALJ also expressly rejected the claimant’s theory that the positional risk doctrine compelled an award of benefits.
The claimant appealed the ALJ’s order. The claimant’s sole argument on appeal is that the ALJ erred in not considering whether the liability for the claimant’s disability should be apportioned between the non-work-related stroke and the conditions of the job. The claimant’s argument is stated as follows: “Respondents have the burden of proving apportionment. However, as no apportionment was argued before the ALJ, such that the ALJ’s `all or nothing’ decision runs contrary to law that shared responsibility for a workplace injury can exist (sic). Apportionment is allowed under worker’s compensation.” Claimant’s Opening Brief in Support of Petition to Review at 2-3 (unpaginated) (citations omitted). As we understand this argument, the claimant asserts that the ALJ should properly have considered whether the delay in treatment combined with either the claimant’s predisposition toward a stroke or with the stroke itself to create disability that was partly work-related. The claimant therefore argues that the portion of disability attributable to the delay in treatment should have been the liability of the respondents. The relief he requests is a remand to the ALJ to consider “the relative amount of causation” for which the respondents ought to be liable. However, we disagree that the ALJ erred in denying the claim for compensation.
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). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). Here, we note that the claimant failed timely to procure a transcript of the hearing held on September 21, 2006. Therefore, we must presume that the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial
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Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Those findings of fact support the denial of the claim. First, we assume without deciding the matter that the claimant was not precluded as a matter of law from recovering benefits under these circumstances under some legal theory. In this respect we note that we agree with the ALJ that the “positional risk” doctrine does not provide for recovery of benefits. The positional risk doctrine generally requires proof that but-for the obligations of employment the claimant would not have been in the particular place at the particular time when he was injured by a “neutral force,” meaning a force which was neither personal to the claimant nor distinctly associated with the employment. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); In re Question Submitted by the United States Court of Appeals for the Tenth Circuit, 759 P.2d 17 (Colo. 1988). Here, it is undisputed that the claimant’s stroke was unrelated to his employment and, in our view, the circumstances of this case do not satisfy the requirement that the injury be caused by a neutral force. Therefore, the ALJ correctly concluded that the positional risk doctrine was inapplicable.
However, where the precipitating cause of an injury is a pre-existing condition which the claimant brings to the workplace, the injury may be compensable if a “special hazard” of the employment combines with the pre-existing condition to cause or increase the degree of injury See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992); Ramsdell v. Horn, 781 P.2d 150(Colo.App. 1989). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury due to the claimant’s pre-existing condition does not bear sufficient causal relationship to the employment to “arise out of” the employment. Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6
(Colo.App. 1985); Gaskins v. Golden Automotive Group, L.L.C., W.C. No. 4-374-591 (August 6, 1999) (injury when pre-existing condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition).
A “special hazard” of employment is one which contributes to the accident or to the extent of the injuries sustained. National Health Laboratories v. Industrial Claim Appeals Office, supra. However, a condition is not considered to be a special hazard of the employment if it is “ubiquitous” in the sense that it is found generally outside of the employment. Gates Rubber v. Industrial Commission, supra (concrete floor is a ubiquitous condition encountered on sidewalks, parking lots, streets and homes). Kidwell v. City of Denver W. C. No. 4-601-057 (December 15, 2004 ).
As noted, however, it is unnecessary for us to determine whether some special hazard
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of the claimant’s employment contributed to the extent of the disability he sustained. The claimant relied principally on the opinions of Dr. Healey that prompt medical attention could have lessened the impairment resulting from the stroke. However, the ALJ weighed the medical evidence and rejected Dr. Healey’s opinions as not persuasive. The ALJ concluded that Dr. Healey’s opinions that the tPA treatment, if promptly administered, might have improved the claimant’s condition were ultimately speculative. In reaching this conclusion the ALJ relied expressly on the opinions of Dr. Quintero, which he credited as persuasive. The ALJ’s rejection of Dr. Healey’s testimony was solely within his province and under the circumstances of this case we may not disturb his credibility determinations. Because the ALJ’s findings are supported by the factual record and because his conclusions represent reasonable inferences from those findings we must affirm the ALJ’s order.
Finally, we reject the claimant’s argument that the ALJ should have considered the legal theory that liability for the claimant’s disability should have been, at least, apportioned between the stroke and the delay in obtaining medical treatment. Because the ALJ rejected the claimant’s theory that prompt medical attention would have reduced the disability, it was unnecessary for him to consider any theory regarding apportionment of the liability.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________Curt Kriksciun
____________________Thomas Schrant
David Booker, 1520 Oneida Street (Upper Apt), Denver, CO, Kevin C. Smith Esq., Cypress Point Suite 900, 3801 East Florida Avenue, Denver CO, (For Claimant)
David G. Kroll Esq., 1120 Lincoln Street Suite 1606, Denver, CO, (For Respondents)
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