W.C. No. 4-274-552Industrial Claim Appeals Office.
February 26, 1997
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded the claimant permanent total disability benefits. We affirm.
The claimant sustained a hernia on October 18, 1993, during the course of his employment as a Risk Manager for the respondent-employer. The claimant also suffers from a pre-existing condition known as “ankylosing spondylitis,” which is a progressive deterioration of the spinal joints. In July 1994, the hernia was surgically repaired. However, during the surgery the claimant was moved from an operating table by rollers. The claimant testified that he subsequently experienced an increase in his back pain from the ankylosing spondylitis.
At the hearing before the ALJ, the parties stipulated that the claimant is “unable to earn any wages” as permanent total disability is defined in § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.). However, the parties disputed the cause of the claimant’s vocational disability. The respondents contended that the claimant’s permanent total disability is due to the ankylosing spondylitis, and that the industrial injury is an “insignificant” causal factor.
From conflicting evidence the ALJ found that, prior to the industrial injury the claimant’s pre-existing condition caused him to experience pain, but did not preclude him from performing the duties of his regular employment because the job was sedentary and flexible. The ALJ further found that the claimant injured his mid and low back during the hernia surgery in July 1994. Because the surgery was deemed to be a probable and natural consequence of the hernia, the ALJ determined that the injury to the claimant’s mid and low back was a direct result of the industrial injury.
Based upon the claimant’s testimony the ALJ determined that the claimant’s mid and low back injury resulted in a fifty percent increase of the claimant’s pain. Further, the ALJ determined that the increased pain caused by the aggravation limited the claimant’s activities. The ALJ also found that the pain impaired the claimant’s stamina to the point that he could no longer work eight hours a day and was limited to working four hours a day. The ALJ determined that the claimant became progressively disabled by the mid and low back pain until June 6, 1995, when he was unable to continue working. Consequently, the ALJ determined that the industrial injury is a significant cause of the claimant’s inability to earn any wages.
On review, the respondents contend that the ALJ misapplied the “full responsibility rule” in awarding permanent total disability benefits. The respondents further contend that the determination of whether the industrial injury is a significant cause of the claimant’s permanent total disability is not a question of “evidentiary fact,” but a question of “ultimate fact” which we can resolve. The respondents rely upon certain medical evidence to argue that as a matter of “ultimate fact” the claimant’s industrial injury is not a significant cause of the claimant’s inability to earn wages. We reject these arguments.
As argued by the respondents, the “full responsibility rule” provides that an employer takes an employee as he finds him, and if the employee has a pre-existing, non-industrial condition which combines with a work-related injury to render the employee permanently and totally disabled, the employer must compensate the worker for the entire permanent total disability. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991) Colorado Fuel and Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). The only exception to the rule is where the industrial injury is not a significant causative factor in the claimant’s disability. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496
(Colo.App. 1995); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). As stated in Seifried, the term “significant” means that there is a direct causal relationship between the industrial injury and the permanent total disability.
The determination of whether the claimant sustained his burden to prove the requisite causal relationship is a question of fact. Lindner Chevrolet v. Industrial Claim Appeals Office, supra. Moreove , the applicable law creates no distinction between “ultimate facts” and “evidentiary facts.” That distinction was eliminated when the General Assembly abolished the former Industrial Commission and created the Industrial Claim Appeals Panel. See May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). As a result, we are required to uphold the ALJ’s findings of ultimate fact as well as evidentiary fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Schrieber v. Brown Root, Inc., 888 P.2d 274, 277 (Colo.App. 1993); May D F v. Industrial Claim Appeals Office, 752 P.2d at 590.
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Furthermore, substantial evidence is not limited to expert medical evidence. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). To the contrary, medical evidence is neither required nor conclusive on the issue of causation, but insofar as medical evidence is presented, it is the ALJ’s province to assess the credibility and probative value of such evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Here, the ALJ relied upon the claimant’s testimony to find a direct causal connection between the mid and low back injury which occurred during the hernia surgery and the claimant’s subsequent inability to work. There is substantial evidence in the claimant’s testimony to support the ALJ’s pertinent findings. (Tr. pp. 10, 11, 13, 36).
The ALJ was also persuaded by that part of Dr. Hughes’ January 31, 1996 report in which he opines that the claimant suffered a thoracic regional injury during the hernia surgery, which aggravated his ankylosing spondylitis. Dr. Hughes also opined that the claimant sustained permanent medical impairment of two percent of the whole person due to the soft tissue injury which occurred during the surgery.
Further, the ALJ credited that part of Dr. Winter’s May 29, 1996 report in which he opined that the claimant’s stamina “decreased significantly” after the hernia surgery. Dr. Winter also opined that being positioned “flat on his back for a sizable length of time while a major herniorrhaphy was being accomplished may also have increased” the claimant’s soft tissue symptoms.
Moreover, the ALJ resolved the conflicts between medical evidence which suggests that the claimant’s permanent total disability is solely due to a progression of the pre-existing condition, and the claimant’s testimony, in favor of the claimant. Specifically, the ALJ determined that the opinions of Dr. Thompson, Dr. Winter, Dr. Belleville and Dr. Hughes which indicate that the pre-existing condition rendered the claimant permanently and totally disabled independent of the industrial injury, were “speculative,” in view of the fact that the claimant was able to work before the industrial injury. See Tr. pp. 60-63; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Since it is supported by substantial evidence, we must uphold the ALJ’s determination that the natural and proximate consequences of the industrial injury are a significant causative factor in the claimant’s inability to earn any wages. Therefore, the ALJ did not err in ordering the respondents to pay permanent total disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 27, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed February 26, 1997
to the following parties:
Michael A. Burch, 1512 South Shields St., Ft. Collins, CO 80521
Larimer County, Attn: Kate Tremblay, P.O. Box 1190, Ft. Collins, CO 80522-1190
Occupational Healthcare Management Services, Inc., 700 Broadway, #1132, P.O. Box 173682, Denver, CO 80217-3682
Kim Dale Starr, Esq., 2629 Redwing Rd., Ste. 330, Ft. Collins, CO 80526 (For the Respondents)
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
BY: _______________________