W.C. Nos. 3-111-318, 3-104-330Industrial Claim Appeals Office.
June 25, 1996
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) which reopened W.C. No. 3-104-330, and awarded additional benefits. We affirm.
W.C. No. 3-104-330 pertains to admitted neck and shoulder injuries sustained by the claimant on May 8, 1991, while working full-time at City Market as a checker. The injuries were treated by Dr. Dr. Krauser and Dr. Hillmer. On April 16, 1992, Dr. Krauser determined the claimant to be at maximum medical improvement (MMI). The claim was subsequently closed pursuant to an uncontested Final Admission of Liability which provided for the payment of permanent disability benefits based upon disability of 4 percent as a working unit.
The claimant was also diagnosed with occupational carpal tunnel syndrome (CTS) in June 1993. The respondent admitted liability for the CTS in W.C. No. 3-111-318.
In December 1993, the claimant terminated her employment at City Market. The following July she began working part-time as a laundress at the San Juan Motel (motel).
The claimant was re-examined by Dr. Hillmer in May 1995 for complaints of increased pain in her neck and numbness in her arms and hands. The claimant subsequently filed a petition to reopen W.C. No. 3-104-330, and alleged a worsening of her condition from the 1991 injuries.
The pertinent issue before the ALJ was whether the claimant suffered a natural worsening of her condition as a result of the 1991 injuries, or whether she suffered an intervening injury at the motel which caused an aggravation of her pre-existing condition. The ALJ found that the claimant only worked part-time at the motel performing “light” work. The ALJ also found that the claimant’s increased problems in her neck and arm predated her employment at the motel, and that the claimant did not suffer any new injury or specific aggravation of her condition at the motel. Therefore, the ALJ determined that the claimant’s employment at the motel did not “substantially aggravate” her pre-existing condition.
Instead, the ALJ credited the testimony of Dr. Hillmer and found that the claimant’s worsened condition was due to the 1991 neck and shoulder injuries. Therefore, the ALJ granted the claimant’s petition to reopen W.C. No. 3-104-330. The ALJ also ordered the respondent to provide further temporary disability and medical benefits.
On review, the respondent contests the ALJ’s failure to attribute the claimant’s worsened condition to a compensable aggravation caused by her employment at the motel. In support, the respondent contends that the claimant’s work at the motel was more physically strenuous than her work at City Market. The respondent also relies upon evidence that the claimant had no medical restrictions at the time she reached MMI from the 1991 injuries, and Dr. Hillmer’s testimony that the claimant’s condition was aggravated by her employment at the motel.
We do not dispute the respondent’s assertion that the claimant may sustain an occupational disease where the hazards of employment combine with a pre-existing condition so as to produce a greater disability. See Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). Moreover, the occurrence of an independent, intervening occupational disease severs the causal connection between the prior industrial injury and the claimant’s disability. Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986).
However, the determination of whether the claimant’s condition is the natural and proximate result of the pre-existing condition or a new injury is a question of fact for the ALJ F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
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, application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, his assessment of the sufficiency and probative weight of the evidence, and the plausible inferences the ALJ drew from conflicts in the evidence Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Here, Dr. Hillmer’s testimony was subject to conflicting inferences. Dr. Hillmer testified that the claimant’s condition was aggravated “to some degree at least,” by her work at the motel. (Tr. p. 28). However, he stated that he didn’t think the claimant’s employment at the motel “made a big difference one way or the other,” and that the claimant “would still be having some trouble even if she didn’t work there.” (Tr. p. 15). Moreover, Dr. Hillmer noted that the claimant has never been symptom free since the 1991 injuries and stated that “it’s medically probable that her present problems in her arms and her neck and radiating out into the back of her shoulders is from her injury of May 8, 1991.”
Dr. Hillmer also stated that is was “reasonable” and “probably the best possibility” that the claimant’s current C7-8 radiculopathy is the result of her work at the motel. (Tr. pp. 26, 31). However, he added that, although the claimant’s work at the motel has aggravated the C7-8 radiculopathy, the radiculopathy “goes back to the original injury.” (Tr. pp. 31, 33).
The ALJ resolved the conflicts in Dr. Hillmer’s testimony against the respondent and credited Dr. Hillmer’s testimony that the claimant suffered injuries to the C5-6 cervical discs in 1991, which have caused a narrowing of the C5-6 disc space, and produced the C7-8 radiculopathy. (Tr. pp. 28, 31, 35). Dr. Hillmer’s testimony could have been construed differently, but the ALJ’s finding that the worsening of the claimant’s condition is not attributable to a new injury from her duties at the motel is a plausible interpretation of that part of Dr. Hillmer’s testimony which the ALJ found persuasive.
The ALJ’s interpretation is buttressed by the claimant’s testimony that her symptoms have increased, “but not very much” during her work at the motel. (Tr. p, 46). The claimant’s testimony also supports the ALJ’s findings that the claimant suffered no specific aggravation or traumatic accident at the motel, and only worked 20-25 hours a week at the motel doing “light work.” (Tr. pp. 41, 48, 53).
Moreover, the ALJ’s findings reflects the ALJ’s consideration of the proper legal standard. The ALJ was not persuaded that there was a sufficient aggravation of the claimant’s pre-existing condition from her work at the motel to account for the claimant’s subsequent disability. Therefore, we cannot say that the ALJ erred as a matter of law in failing to find that the claimant’s worsened condition is attributable to an intervening occupational disease.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 30, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. (1995 Cum.Supp.).
Copies of this decision were mailed June 25, 1996 to the following parties:
Mary Ann Foutz, P.O. Box 1533, Pagosa Springs, CO 81147
City Market, Inc., Attn: Landon Brolien, P.O. Box 729, Grand Junction, CO 81502
Frederick Aldrich, Esq., P.O. Box 40, Grand Junction, CO 81502 (For the Respondents)
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
BY: _______________________