W.C. No. 4-180-470Industrial Claim Appeals Office.
August 14, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which determined that the claimant sustained a compensable injury to his thumb, and awarded temporary disability benefits. The respondents contend the ALJ erroneously found that the thumb injury was proximately caused by the claimant’s prior industrial injury. We affirm.
The claimant sustained a compensable industrial injury to his right thumb in August 1993. Consequently, the claimant underwent several surgeries including fusion of the IP and MP joints of the thumb.
On May 19, 1997, the claimant was repairing a tire on his personal vehicle. It is undisputed that repair of the tire did not occur in the course of the claimant’s employment, nor did it occur in the “quasi-course” of employment. As the claimant placed the tire on the pavement, it bounced. The claimant attempted to “stabilize” the tire, and reinjured his thumb.
The ALJ described the injury as a “refracture just to the side of the original arthrodesis” and, relying on the testimony of Dr. Conyers, the ALJ found this site was “weakened due to the original [industrial] injury.” Under these circumstances, the ALJ concluded that the August 1993 industrial injury was a proximate cause of the May 19, 1997, injury, and that the claimant’s act in attempting to stabilize the tire did not “break the chain of causation” between the 1993 injury and the May 1997 injury.
On review, the respondents contend the ALJ erred as a matter of law in determining that the 1993 industrial injury was a “proximate cause” of the claimant’s May 1997 injury. Relying o Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934), the respondents reason that the claimant’s repair of the tire was an efficient, intervening cause of the 1997 injury. We are not persuaded.
Section 8-41-301(1)(c), C.R.S. 1997, provides that an injury is not compensable unless “proximately caused by an injury or occupational disease arising out of and in the course of” employment. The element of proximate cause is met if an industrial injury leaves the body in a weakened condition, and the weakened condition is the proximate and natural cause of a reinjury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). Conversely, if the evidence shows that a claimant’s reinjury is the result of an efficient intervening cause, compensation will not be awarded merely because the claimant did not retain his former physical powers after the industrial injury Post Printing and Publishing Co. v. Erickson, supra.
The respondents’ assertions notwithstanding, the determination of whether a reinjury is a proximate result of a prior industrial injury is generally a question of fact for determination by the ALJ. Lutgen v. Teller County School District No. 2, W.C. No. 3-846-454 (June 12, 1996), aff’d., Teller County School District No. 2 v. Industrial Claim Appeals Office, (Colo.App. 96CA1194, December 27, 1996) (not selected for publication). It is only where reasonable minds could draw but one inference that the issue of proximate cause becomes one of law for the ALJ See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
Here, the record contains ample evidence to support the ALJ’s determination that the 1993 injury weakened the claimant’s thumb so as to be a proximate cause of the 1997 injury. Dr. Conyers explained that the two surgical joint fusions performed on the claimant’s thumb left it rigid and subject to reinjury. (Conyers depo. p. 18). The claimant testified that the reinjury occurred when he simply attempted to stabilize the tire as it bounced on the pavement. These circumstances fall within the rule established in Standard Metals Corp. v. Ball, and we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the inferences and conclusions to be drawn from the record.
Moreover, this is not a case in which the claimant was performing some unreasonable activity at the time of reinjury. In fact, Dr. Conyers testified that the claimant’s action in repairing the tire was not unreasonable considering the effects of the thumb injury. (Conyers depo. p. 18). Thus, the claimant’s conduct did not constitute an efficient intervening cause of the injury. See 1, Larson’s Workers’ Compensation Law, § 13.12(c).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 18, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 14, 1998 to the following parties:
Ronald Chambers, 10701 Pecos St., Bldg. 6, Apt. 602, Northglenn, CO 80234
Lyle’s Construction, Inc., P.O. Box 70, Lafayette, CO 80026-0070
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204 (For the Claimant)
By: _______________________