W.C. No. 4-223-928Industrial Claim Appeals Office.
October 13, 1995
FINAL ORDER
The self-insured respondent seeks review of a final order of Administrative Law Judge Stuber (ALJ). The respondent filed a petition to review asserting that the ALJ erred in finding that the claimant sustained a compensable occupational disease, and in awarding medical benefits. However, the respondent failed to file a brief in support of the petition, and consequently, the effectiveness of our review is limited.
An occupational disease results from the employment or the conditions under which the work is performed, can be fairly traced to the employment as a proximate cause, and does not come from a hazard to which the worker was equally exposed outside of employment. Section 8-40-201(14), C.R.S. (1995 Cum. Supp.). Under this statute, there is no requirement that the occupational disease result solely from work-related hazards. To the contrary, the claimant may prove that the hazards of the employment have aggravated, to some reasonable degree, a pre-existing condition. In that event, “the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.”Anderson v. Brinkhoff, 859 P.2d 819, 825 (Colo. 1993). Moreover, where the claimant establishes a prima facie case that the hazards of the employment have aggravated a pre-existing condition so as to produce disability, the respondent bears the burden to present evidence permitting apportionment to non-industrial causes of the disease. Cowan Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
The question of whether the hazards of employment are the cause of the claimant’s disability is one of fact for resolution by the ALJ. See F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we are obliged to uphold the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondent’s argument notwithstanding, the record supports the ALJ’s finding that the claimant sustained a compensable occupational disease. The ALJ credited the claimant’s testimony that, although she had pre-existing shoulder problems, the repetitive reaching required by her employment aggravated her condition. Moreover, as the ALJ implicitly determined, the respondent failed to present any plausible basis for apportioning the claimant’s disability between the work-related aggravation and the pre-existing condition. Therefore, we perceive no error in the determination of compensability or the award of medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 9, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 13, 1995 to the following parties:
Susanna Goff, 6800 E. Tennessee 3631, Denver, CO 80224
City County of Denver, Attn: Nancy Griffin, 1445 Cleveland Pl., Annex 1 #200,
Denver, CO 80202
Dan R. Cohen, Esq., 700 Broadway, #1101, Denver, CO 80203 (For the Claimant)
John R. Palermo, Esq., 1445 Cleveland Pl., Room 303, Denver, CO 80202
(For the Respondent)
By: __________________________________