W.C. No. 4-271-333Industrial Claim Appeals Office.
September 20, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied and dismissed his claim for workers’ compensation benefits. We affirm.
The claimant testified that he injured his neck in June 1994, when he and the manager of the Pizza Hut store where he was employed were wrestling. However, the claimant admitted that he did not seek medical treatment and did not lose any time from work until after an incident on June 20, 1995, where he experienced severe neck pain while reaching across a restaurant table. Thereafter, the claimant was examined by Dr. Ribovich, and underwent surgery for a herniated cervical disc. In October 1995, the claimant filed a claim for workers’ compensation, in which he asserted that the herniated disc and subsequent need for surgery were the result of the June 1994 incident.
The ALJ determined that the claimant failed to sustain his burden to prove that his disability and need for medical treatment were a result of the June 1994 incident. Instead, the ALJ found that herniated disc was the natural and probable consequence of the June 1995 non-industrial event. Accordingly, the ALJ determined that the claimant did not sustain a compensable injury.
On review, the claimant concedes that the June 1995 incident may have “contributed” to his disability and need for medical treatment. However, he argues that there is substantial evidence that the June 1994 also contributed, and therefore contends that the ALJ erred in failing to apportion at least part of the condition to the June 1994 incident. We disagree.
Initially, we note that the claimant’s “apportionment” argument was not raised before the ALJ. Consequently, the argument need not be addressed on review. See Apache Corp. v, Industrial Commission, 717 P.2d 1000 (Colo.App. 1986).
However, even if the claimant’s apportionment argument is implicit in the claim for benefits and therefore, properly before us, we conclude that the argument is without merit. We know of no authority, and the claimant cites none for the proposition that the ALJ may apportion causation between industrial and non-industrial incidents in a claim based upon an “accidental injury.” See § 8-40-201(1), C.R.S. (1996 Cum. Supp.); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993) (“accidental” injuries are traceable to a specific trauma and “occupational diseases” result from the conditions of employment). Rather, causation has only been apportioned in claims involving occupational diseases. See Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
Furthermore, the claimant’s reliance upon Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934), is misplaced. Nothing in that case supports the claimant’s apportionment theory. To the contrary, Post Printing stands for the proposition that a claimant is not entitled to additional workers’ compensation benefits when the claimant’s condition worsens as a result of a subsequent, intervening non-industrial injury.
In any case, the ALJ was not persuaded that there is a causal connection between the herniated disc and the June 1994 incident. In support, the ALJ relied upon the evidence that the claimant did not report a work-related injury until October 1995, and that the claimant signed a disability claim form on July 7, 1995, which listed the date of illness as June 20, 1995. Furthermore, the ALJ found that during an examination by Dr. Ribovich on June 26, 1995, the claimant attributed his pain to a restaurant reaching incident six days earlier. The claimant also denied any other injuries, except for a report of posterior neck discomfort after the 1994 wrestling incident, which he described as producing similar, but less severe symptoms than the June 1995 incident. Although this evidence is susceptible of conflicting inferences, the ALJ could properly infer from it that the June 1994 incident did not cause the claimant’s injury.
We are not persuaded that Dr. Ribovich’s September 26, 1995 report compels a different conclusion. The ALJ explicitly considered the opinion contained in this report that the June 1994 wrestling incident may have caused some disc injury. However, as noted by the ALJ, Dr. Ribovich also stated that “one would have expected continued neck problems from that time up until more recently if a significant injury had occurred” during the wrestling incident. Dr. Ribovich further opined that even though the restaurant incident appeared “trivial,” such an incident “can result in the onset of symptoms.” Therefore, Dr. Ribovich stated that he could not determine the etiology of the claimant’s cervical disc herniation “with any significant degree of medical probability.” These circumstances support the ALJ’s conclusion that the claimant failed to meet his burden of proving a compensable injury.
Because the ALJ’s findings are supported by substantial evidence in the record, they must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Furthermore, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative value of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Therefore, we may not disturb the ALJ’s determination that the claimant failed to sustain his burden to prove that the June 1994 incident caused an injury.
As a result of this disposition, it is immaterial whether the claimant was in the scope of his employment at the time of the wrestling incident. Consequently, we need not address the claimant’s assertion that the altercation arose out of and in the course of the claimant’s employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 11, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed September 20, 1996 to the following parties:
Frank John Kowal, Jr., 3957 S. Fundy Circle, Aurora, CO 80013
JVK Enterprises, Inc., 14736 E. Easter Ave., Englewood, CO 80112
Joe Barbara, Safeco Insurance Companies, 12499 W. Colfax Ave., Lakewood, CO 80215-4731
Fred A. Ritsema, Esq. Hollyce H. Farrell, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
William M. Sterck, Esq., 679 Grant St., Denver, CO 80203 (For the Claimant)
BY: _______________________