W.C. No. 4-766-331.Industrial Claim Appeals Office.
July 20, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 10, 2009, that denied and dismissed the claim for benefits under the Workers’ Compensation Act. We affirm.
The claimant worked as a drywall installer and welder for the employer. This work required the claimant to use his arms over his head on a repetitive basis. On Sunday, February 24, 2008 the claimant noticed swelling in his left arm. An ultrasound revealed a subclavian vein clot and the claimant underwent an angioplasty and stent placement in the left subclavian vein.
Dr. Carlson opined that the claimant had venous thoracic outlet syndrome and then developed a venous occlusion in February of 2008. Dr. Carlson believed the claimant’s condition was work-related. Dr. Paz opined that the claimant’s blood clotting condition was not work-related. The ALJ found the opinion of Dr. Paz more probable than Dr. Carlson’s opinion. The ALJ found that the claimant had failed to establish by a preponderance of the evidence that his blood clotting condition arose out of the work he performed for the employer. The claimant appeals contending that the ALJ committed two errors.
I.
The claimant first contends the ALJ erred in failing to analyze whether the claimant’s disability was the result of an occupational disease. We first note that in the claimant’s Position Statement, although he noted a difference between an accidental injury and occupational disease, the claimant simply asked that it be determined that his
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“condition” was compensable and that the respondents be held liable for medical benefits. The ALJ did make a determination of compensability although it was not in favor of the claimant.
We further note that the claimant had the burden to prove that his alleged disability was proximately caused by an injury or occupational disease arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2008. The ALJ found that the claimant had failed to establish by a preponderance of the evidence that his blood clotting condition arose out of the work he performed for the employer.
As we read the ALJ’s decision, he gave due consideration to whether the claimant sustained a compensable injury under the circumstances, either in the nature of an accident or an occupational disease. As noted by both the claimant and respondents, the distinction between an “occupational disease” and an “accidental injury” is that an “accidental injury” is the result of an event, which is traceable to a particular time, place and cause. Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964). In contrast, an “occupational disease” is acquired in the ordinary course of employment and is a natural incident of the employment. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993).
Here, the ALJ found that it was clear that the claimant suffered an acute injury to his left arm as a result of a blood clot in his left subclavian vein on Sunday, February 24, 2008. Tr. at 31-32; Exhibit C at 12. The only prior indication of an issue was the claimant’s intermittent tingling of his left arm and fingers, which subsided with rest. Tr. at 15, 32-34; Exhibit C at 10; Carlson Depo. at 24. Both Dr. Carlson and Dr. Paz indicated that these symptoms were most likely neurogenic (as opposed to venous) in nature. Paz Depo. at 10; Exhibit C at 9; Exhibit 9 at 70; Carlson Depo. at 7, 14. In addition, these prior symptoms were much less severe than the intense pain and swelling the claimant first suffered on February 24, 2008. Tr. at 34-35. On Saturday, February 23, 2008, the day before his hospitalization the claimant had been working on his own truck with help from his cousin. Tr. at 16, 25-26. The claimant was changing the transmission. Tr. at 26. Most of this work was done while the claimant was under the truck on a creeper. Tr. at 27-29. Dr. Carlson conceded that the claimant’s work activities on his truck could have contributed as the “final straw” to development of the clot. Carlson Depo. at 16-18. Dr. Paz noted that the claimant developed the acute and severe symptoms of pain and swelling in his left upper extremity within 24 hours after performing work underneath his truck on Saturday, February 23, 2008. Paz Depo. at 10; Exhibit C at 9-10. Therefore, the ALJ found that Dr. Paz plausibly reasoned that the claimant’s use of his left arm underneath the truck likely led to initial formation of the clot, which progressed to an occluded state by Sunday, February 24, 2008. Exhibit C at
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10, 12. Dr. Paz also indicated that the claimant’s long history of cigarette smoking may have contributed to the development of the clot. Exhibit C at 11. As a result, there was insufficient evidence for the ALJ to conclude that the claimant’s prior symptoms were indicative of a problem, which led to the claimant’s blood clot condition on February 24, 2008, and resulting need for medical treatment. Paz Depo. at 10; Exhibit C at 9. More likely, the claimant’s blood clot developed as a result of the personal work he performed on his truck on Saturday, February 23, 2008 while the claimant was not working for the employer. Paz Depo. at 10; Exhibit C at 12.
Based upon the totality of the circumstances, the ALJ concluded that there was insufficient evidence to establish that the claimant’s acute episode on February 24, 2008 was proximately caused by his work conditions. The ALJ further concluded that the credible evidence of record failed to demonstrate by a preponderance of the evidence that the claimant’s acute injury on Sunday, February 24, 2008, subsequent left upper extremity problems, and need for medical treatment arose out of and in the course of his employment at the employer and is compensable.
It is apparent from his analysis that the ALJ considered the claimant to have suffered an acute injury to his left arm as a result of a blood clot in his left subclavian vein on Sunday, February 24, 2008 rather than an occupational disease. The ALJ specifically discounted the intermittent symptoms of tingling of his left arm and fingers as being most likely neurogenic (as opposed to venous) in nature. As we read the ALJ’s order he did not accept the claimant’s theory of the case that the left arm symptoms represented compression of the nerve passing through the thoracic outlet, which resulted in the left subclavian vein being damaged and resulting in the buildup of scar tissue that slowed the flow of blood and formed a clot.
We recognize that the ALJ did not specifically state that the claimant did not suffer an occupational disease. However, in resolving the issue of compensability the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). To the contrary, the ALJ is only required to enter findings on the evidence he found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
In our view, the ALJ entered his findings, which were dispositive of the central issue of compensability. Proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. Section 8-43-201, C.R.S. 2008; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The question of whether the claimant has proven a causal relationship between the employment and the
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alleged injury or disease is one of fact for determination by the ALJ City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
It is apparent to us that the ALJ analyzed the case and found that the claimant had failed to prove a causal relationship between his employment and his condition. Here, the ALJ determined that the credible evidence of record failed to demonstrate by a preponderance of the evidence that the claimant’s acute injury on Sunday, February 24, 2008, subsequent left upper extremity problems, and need for medical treatment arose out of and in the course of his employment at the employer and are compensable. We perceive no reason to interfere with that determination.
II.
The claimant next contends that the ALJ failed to resolve adequately conflicts in the evidence and that the ALJ’s finding that the claimant suffered an acute injury is not supported by substantial evidence. We do not agree.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, supra. Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ.
Here the ALJ made extensive findings of fact with record support as outlined above. In our opinion these findings constitute substantial evidence supporting the ALJ’s determination. The primary factual conflict on the issue of compensability involved medical opinions on causation. The ALJ clearly resolved the conflict between the opinions of Dr. Paz and Dr. Carlson in favor of the respondents.
Nevertheless, the claimant contends that the ALJ’s decision is internally inconsistent. In support of this contention, the claimant notes that the ALJ credited the opinion of Dr. Paz that if the claimant’s work activities had contributed to the development of the clot that he would have expected the claimant’s left upper extremity symptoms to progress rather than remain stable. On the other hand Dr. Paz noted that the claimant developed acute and severe symptoms of pain and swelling in his left upper extremity within 24 hours after performing work underneath his truck. The claimant contends the opinions of Dr. Paz, which were accepted by the ALJ, cannot be reconciled with the ALJ’s finding that the claimant in working on his car only removed 25 to 35
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bolts after a six-hour period and after completing his work had no symptoms of numbness or tingling. However, reading the ALJ’s order as a whole, we are not persuaded that the ALJ’s decision contains any fatal logical inconsistency.
Here the ALJ found that the claimant while working as a drywaller and welder for many years had experienced sporadic neurogenic symptoms. The ALJ found that if these work activities had contributed to the development of the clot on February 24, 2008 Dr. Paz would have expected the claimant’s left upper extremity to progress rather than remain stable and transient. However, these neurogenic symptoms did not progress and therefore the ALJ plausibly concluded that these prior symptoms were not indicative of a problem, which led to the claimant’s blood clot condition on February 24, 2008. Instead, the ALJ found that Dr. Paz persuasively reasoned that the claimant’s use of his left arm underneath the truck on February 23, 2008 likely led to the initial formation of the clot, which progressed to an occluded state by Sunday, February 24, 2008. The ALJ further noted that the claimant’s long history of cigarette smoking may have contributed to the development of the clot.
As we read the ALJ’s order, he makes a distinction between the claimant’s neurogenic symptoms and venous symptoms. This distinction was based upon the medical evidence primarily supplied by Dr. Paz. The ALJ determined that the neurogenic symptoms, possibly connected with the claimant’s work, did not progress and therefore did not cause the claimant’s acute blood clot episode on February 24, 2008. In contrast, the claimant’s acute injury on Sunday February 24, 2008 and subsequent left upper extremity problems and need for medical treatment were venous in nature as opposed to neurogenic. In our view, there is no internal inconsistency in accepting the ALJ’s line of reasoning. The fact that the claimant did not have symptoms of numbness or tingling after completing work on his truck is plausibly explained as the claimant not experiencing neurogenic symptoms from the work on his truck. However, here the ALJ viewed the compensability issue to be the determination of the cause of the claimant’s venous problem. The ALJ found that claimant’s work on his truck was the likely cause of the claimant’s venous symptoms that are associated with the blood clot that developed on February 24, 2008.
The evidence might have been interpreted differently, but the existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). In our view, the ALJ did not commit reversible error.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 10, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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DAVID BRASSARD, DURANGO, CO, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
DAWES, HARRISS BLOODSWORTH, PC, Attn: ELLIOT L. BLOODSWORTH, ESQ., DURANGO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MYRNA VALENCIA, DENVER, CO, (Other Party).