W.C. No. 4-550-553.Industrial Claim Appeals Office.
September 8, 2003.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed her claim for death benefits. We affirm.
The decedent was employed as a janitor. On August 1 the decedent was hospitalized for emergency treatment after becoming unconscious at home. The decedent died on August 4 from a subdural hematoma. The claimant was a dependent of the decedent.
The claimant alleged the subdural hematoma was caused by a head injury at work. Specifically, the claimant alleged the decedent fell and hit his head because the employer did not adhere to medical restrictions imposed for an industrial back injury on July 3, 2002, in which the claimant felt dizzy and fell off a bathroom stool. However, there were no witnesses to any head injury at work and the claimant did not report any head injury to the employer.
The ALJ found the claimant had a history of heart problems which lead to an aortic valve replacement in 1985, chronic atrial fibrillation, flutter and hypertension. In November 2001 a pacemaker was installed. The claimant was also taking anticoagulation medication.
Dr. Steig, who reviewed the decedent’s medical records, testified that a subdural hematoma is bleeding beneath the covering of the brain which can also occur spontaneously in patients who take anticoagulant medication. (Tr. p. 57). Dr. Steig opined that if the claimant had sustained a blow to the head it would have been more obvious than in a patient who did not take anticoagulant medication because anticoagulants cause greater bruising. (Tr. p. 59). In the decedent’s case, Dr. Steig noted there was no bruising or lacerations on the exterior of the decedent’s skull which would be consistent with a subdural hematoma caused by trauma. (Tr. p. 60). Further, Dr. Steig noted there was no history of any head injury except as reported by the claimant. Therefore, Dr. Steig opined the subdural hematoma was not caused by a fall at work.
Crediting the testimony of Dr. Steig the ALJ found the claimant failed to present a preponderance of evidence that the decedent’s death was the result of an injury arising out of or in the course of employment. Further, the ALJ determined that had the decedent fallen at work, it was the result of a preexisting disease without contribution from the employment. Therefore, the ALJ denied the claim for workers’ compensation benefits.
The claimant’s Petition to Review does not contain any specific allegations of error and her brief in support of the Petition essentially challenges the ALJ’s inferences. We perceive no reversible error in the ALJ’s order.
Section 8-41-301(1)(c), C.R.S. 2002, creates the right to compensation where the worker’s death is “proximately caused by an injury or occupational disease.” It is the claimant’s burden to prove by a preponderance of evidence that the decedent suffered an industrial injury which proximately caused his death. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991).
Our authority to review the ALJ’s order is defined in § 8-43-301(8), C.R.S. 2002. That statute precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
The claimant’s arguments notwithstanding, the ALJ’s pertinent findings of fact are supported by substantial evidence in the record, including the testimony of Dr. Steig. The opinions of Dr. Steig are also buttressed by the claimant’s medical history and we disagree with the claimant’s contention that this evidence was not relevant in determining the cause of the subdural hematoma. Furthermore, the ALJ’s findings support the conclusion the claimant failed to prove the requisite causal connection between the employment and the decedent’s death. Therefore, the ALJ did not err in denying the claim for workers’ compensation benefits.
However, the claimant contends she had no advance notice Dr. Steig would be a witness. Therefore, the claimant objects to the ALJ’s consideration of Dr. Steig’s testimony. We note that the claimant made no objection at the time of the hearing to the receipt of Dr. Steig’s testimony. (Tr. p. 55). Therefore, any objection which she may have had to the admission of Dr. Steig’s testimony was waived. See CRE 103(a)(1).
In any event, we perceive no error in the admission of Dr. Steig’s testimony. The respondents’ December 2, 2002, response to the claimant’s application for hearing on the claim for death benefits endorses Dr. Steig as a witness.
Further, any error in Dr. Steig’s recitation of the claimant’s medical history went to the weight not the admissibility of Dr. Steig’s testimony. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988). However, there is substantial evidence to support Dr. Steig’s testimony that the claimant had an aortic value replacement in 1984 and a recent history of dizziness, and passing out caused by ongoing heart problems. (See Tr. pp. 22, 28, 43).
Finally, the ALJ’s finding that the decedent’s work shift ended at 7 a.m is supported by substantial, albeit conflicting evidence and therefore, must be upheld. (See Tr. pp. 12, 53); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993) . In any case, the ALJ’s finding that the decedent’s shift ended at 7 a.m. does not appear to have been central to the order. Therefore, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ’s order. Section 8-43-301(8).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 18, 2003, 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. 2002. 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 September 8, 2003 to the following parties:
Lula Beatrice Carder, c/o Beverly Zielinski, 4494 Gaston St., Weeki Wachee, FL 34607-2447
University of Denver Colorado Seminary, 2040 E. Evans Ave., #E217, Denver, CO 80208
Legal Department, Pinnacol Assurance — Interagency Mail
Felip Zielinski, 4494 Gaston St., Weeki Wachee, FL 34607-2447 (For Claimant)
Douglas P. Ruegsegger, Esq. and Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado