W.C. No. 4-275-780Industrial Claim Appeals Office.
March 12, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied and dismissed her claim for workers’ compensation benefits. We affirm.
The claimant suffered a non-industrial injury to her left shoulder, which was subsequently diagnosed as a left impingement syndrome. In January 1994, Dr. Sheplay began treating the claimant for ongoing left shoulder problems.
During this time, the claimant was employed at the Delta County Memorial Hospital (Delta Hospital) as an operating room director. In September 1994, the claimant’s job was changed to staff floor nurse. The claimant testified that the increased overhead reaching and lifting required of her as a staff floor nurse aggravated her preexisting shoulder condition, which resulted in increased symptoms of pain and stiffness.
The claimant alleged that the aggravation constituted a compensable injury in the nature of an occupational disease. The claimant also alleged that the aggravation prompted her to obtain medical treatment she would not otherwise have required to treat the preexisting shoulder condition.
The ALJ rejected the claimant’s testimony that her left shoulder condition worsened as a result of her change in job duties. The ALJ found that this testimony was inconsistent with Dr. Sheplay’s November 7, 1994 treatment records which indicated that the claimant suffered a “severe flare-up” of shoulder pain when she went to Denver to attend to her husband’s illness and had to sleep on a recliner chair for several nights. Further, the ALJ found that the claimant’s statement that her condition improved during a leave of absence in December 1994 was inconsistent with Dr. Sheplay’s progress notes which indicated the claimant’s condition worsened when she took a three-month leave of absence to care for her husband. Dr. Sheplay’s report also “identified” the claimant’s “ongoing stress” from her husband’s health problems as a major factor in the exacerbation of the claimant’s left shoulder pain.
Based upon these findings the ALJ determined that the claimant “failed to prove by a preponderance of the evidence that factors specific to her employment at Delta County Memorial Hospital caused a compensable occupational disease,” or that “a change of job duties . . . led to an aggravation of her preexisting non-industrial condition.” Crediting the opinions of Dr. Winkler, the ALJ also determined that the claimant failed to prove by a preponderance of the evidence that she suffered a “substantial permanent aggravation” of her preexisting non-industrial shoulder injury. Rather, the ALJ found that although the claimant suffered “many aggravations of her preexisting shoulder condition while employed” at the Delta Hospital, “these aggravations were temporary aggravations of her symptoms, rather than a substantial permanent aggravation of her preexisting condition.”
On appeal, the claimant contends that the ALJ misconstrued the law in concluding that she was required to prove a “substantial permanent aggravation” of her preexisting condition to establish a “compensable occupational disease.” The respondents concede the claimant’s argument, but contend that any error was harmless. We agree with the respondents.
As argued by the claimant, a compensable injury may result from the aggravation of a preexisting, non-occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990). Where, as here, the claimant alleges an “occupational disease,” the burden of proof is governed b Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) Anderson provides that where an occupational exposure to the hazards of the disease is not a necessary precondition to the development of the disease, “the claimant suffers an “occupational disease” to the extent that the industrial exposure to the hazards of the disease caused, intensified or aggravated, to some reasonable degree, the disability for which benefits are sought. 859 P.2d at 824.
However, the claimant is not required to prove that the industrial exposure was either “substantial” or “permanent.” To the contrary, a “temporary” aggravation of a preexisting condition is compensable, as long as the industrial exposure is the proximate cause of the claimant’s temporary disability or need for medical treatment. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949) Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988); see also Conry v. City of Aurora, W.C. No. 4-195-130, April 24, 1996. (industrial ammonia exposure resulted in compensable temporary aggravation of preexisting asthma).
Moreover, the statutory language in § 8-41-304(1), C.R.S. (1996 Cum. Supp.), which requires proof of a “substantial permanent aggravation” only applies when there is an occupational disease in the first instance that is aggravated by subsequent employment. See Monfort Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993); Fisher v. United Parcel Service, W.C. Nos. 4-114-768 4-221-453, May 8, 1996; aff’d Fisher v. United Parcel Service, (Colo.App. No. 96CA0943, February 20, 1997) (not selected for publication). Consequently, the “substantial permanent aggravation” standard is not applicable, under circumstances such as presented here, where the issue was whether the claimant suffered an occupational disease in the first instance. Fisher v. United Parcel Service, supra.
Nevertheless, the ALJ’s findings and conclusions also reflect his further determination that the claimant failed to prove that the conditions of her employment had cause any occupational disease or aggravation of her underlying preexisting condition. Furthermore, insofar as the ALJ found that the claimant had experienced “aggravations” of her symptoms during the time she was employed at the Delta Hospital, the ALJ was not persuaded that these “aggravations” were causally related to the conditions of her employment.
The ALJ’s findings regarding causation are supported by substantial evidence in the record, and they support the denial of the claim. Section 8-41-301(1), C.R.S. (1996 Cum. Supp.). Therefore, we must uphold the ALJ’s order. See Featherstone v. Loomix, Inc., 726 P.2d 246, 249 (Colo.App. 1986) (ALJ’s order to be sustained if a proper interpretation of the law produces the same legal result). Consequently, the ALJ’s additional reliance on his determination that the claimant did not suffer any “substantial permanent” aggravation was harmless, and may be disregarded. Section 8-43-310 C.R.S. (1996 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed March 12, 1997 to the following parties:
Sherry Cooper, 1490 F Road, Delta, CO 81416
Delta Memorial Hospital Assn., P.O. Box 10100, Delta, CO 81416
Colorado Hospital Assn. Trust, Support Services, Inc., Attn: Denise A. Groves, P.O. Box 22438, Denver, CO 80222
Andrew R. Bantham, Esq., 2629 Redwing Road, Ste. 330, Ft. Collins, CO 80526 (For the Respondents)
J. Anthony Ogden, Esq. Paul D. Feld, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________________