W.C. No. 4-749-717.Industrial Claim Appeals Office.
January 16, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated September 15, 2008, that determined the claimant had suffered an occupational disease and ordered the payment of specific medical treatment. We affirm.
The claimant worked as a cashier for the employer for approximately three years. The ALJ found the claimant suffered bilateral carpal tunnel syndrome, which arose from a combination of diabetes, obesity, and repetitive forceful grasping at work. The ALJ concluded that the hazards of employment as a cashier caused, intensified, or aggravated the claimant’s carpal tunnel syndrome to some reasonable degree and therefore he found the claim compensable.
On appeal, the respondents contend that the ALJ’s conclusion that the claimant suffered a compensable occupational disease is contrary to his own factual findings, because the ALJ made no factual findings regarding “repetitive forceful grasping” required by the claimant’s work. The respondents further maintain that there is no record support for the finding that the claimant’s job duties required “repetitive forceful grasping.” Therefore, the respondents contend that the ALJ’s findings are not supported by substantial evidence in the record. We are not persuaded that the ALJ erred.
Section 8-40-201(14), C.R.S. 2008 defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of
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the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under § 8-40-201(14), C.R.S. 2008 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated to some reasonable degree the disability for which compensation is sought. Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence, which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review under the substantial evidence standard is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d. 1182 (Colo.App. 1990).
There appears to be no dispute that the claimant suffered from bilateral carpal tunnel syndrome. In any event, there is certainly support in the record for the ALJ’s finding that the claimant suffered from bilateral carpal tunnel syndrome. Dr. Baer performed electromyography and nerve conduction studies, which showed moderate right carpal tunnel syndrome and mild left carpal tunnel syndrome and concluded the claimant had no peripheral neuropathy. Exhibit 2 at 3.
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Instead, the relevant issue is causation. As found by the ALJ Dr. Bissell opined that the claimant had three major risk factors for carpal tunnel syndrome. Exhibit B at 6. These were diabetes, obesity, and repetitive forceful grasping. Dr. Bissell noted that any of the three factors alone could cause carpal tunnel syndrome, but he thought it was more likely that the claimant’s carpal tunnel syndrome resulted from a combination of all three factors. Exhibit B at 6. The ALJ relied on Dr. Bissell’s opinion in concluding that the claimant’s carpal tunnel syndrome arose from a combination of diabetes, obesity, and repetitive forceful grasping at work. The ALJ determined that the hazards of employment as a cashier caused, intensified, or aggravated the claimant’s carpal tunnel syndrome in some reasonable degree.
The respondents argue that the ALJ made no factual findings regarding “repetitive forceful grasping” required by the claimant’s work. However, the ALJ specifically found that the claimant’s carpal tunnel syndrome arose from a combination of diabetes obesity, “and repetitive forceful grasping at work.” Finding of Fact § 16 at 3.
The respondents further argue, pointing to evidence that the claimant only worked intermittently at the cash register in the garden center, that the ALJ erred in relying on the opinion of Dr. Bissell because there was no substantial evidence that would support a finding that the claimant’s job duties consisted of “repetitive forceful grasping.” The respondents also note evidence that claimant’s work was not exclusively as a cashier, but also involved activities such as watering, stocking, helping customers, dusting, sweeping floors. The respondents argue from this evidence that the claimant necessarily would be on and off the register.
However, in our opinion there was evidence in the record to support a finding that the claimant’s work involved repetitive forceful grasping. The ALJ made the following findings of fact with record support. The claimant spent approximately four hours per day cashiering in the garden center. Tr. at 33-34 54. She spent her other work time watering plants and performing other duties. Tr. at 34. The claimant occasionally worked as a cashier in the front of the store. Tr. at 37. Cashiering in the front of the store involved steady, repetitive work as a cashier. Tr. at 54-55. Cashiering duties in the garden center involved some repetitive upper extremity use, but the checkout lane was not as busy as at the front of the store. Tr. at 42.
Dr. Boulder’s medical history of the claimant included activities at work such as scanning and forceful grasping performed in the usual course of her duties as a cashier. Exhibit 4 at 10. Dr. Bissell took a history from the claimant that included a description of her job duties. Dr. Bissell, as noted by the ALJ, outlined three major risk factors including repetitive forceful grasping. In our view, based on the claimant’s testimony
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and the medical record, there was substantial evidence to support the determination that the claimant’s work involved repetitive forceful grasping. Further, in our opinion, it was a reasonable inference for the ALJ to conclude that the repetitive forceful grasping that occurred on the job caused, intensified or aggravated the claimant’s carpal tunnel syndrome in some reasonable degree.
The respondents also argue that the ALJ should not have relied on Dr. Bissell’s opinion because the Medical Treatment Guidelines state that a job title alone is not sufficient information on which a doctor may rely. Rather, the respondents assert that the guidelines require that the clinician is responsible for documenting specific information regarding repetition, force, and other risk factors as listed in the table entitled “Risk Factors Associated with CTS.” Rule 17-Exhibit 2-D(2)(b), 7 Code Colo. Reg. 1101-3 at 156. In his closing argument the respondents’ attorney made a general reference to the Medical Treatment Guidelines, merely “pointing” the ALJ to them. Tr. at 67-68. However, the attorney did not argue at that point that the guidelines prohibited the ALJ from relying upon Dr. Bissell’s opinion, and we do not see that the argument was raised elsewhere by the respondent before the ALJ Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Therefore, we decline to consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). Moreover, we note that Dr. Bissell took a history from the claimant that included other information beyond merely noting the claimant’s job title. Exhibit B at 4. We are not persuaded that the ALJ was compelled as a matter of law to discredit Dr. Bissell’s opinion.
IT IS THEREFORE ORDERED that the ALJ’s order issued September 15, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Curt Kriksciun
____________________ Thomas Schrant
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THERESA BIANGHI, COLORADO SPRINGS, CO, (Claimant).
WALMART, C/O: WAL-MART STORES, INC., COLORADO SPRINGS, CO, (Employer).
CLAIMS MANAGEMENT, INC., Attn: MELISSA WATSON, BENTONVILLE, AR, (Insurer).
WILLIAM A. ALEXANDER, JR., PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., AUSTIN BLUFFS PKWY, COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD BOVARNICK, ESQ., SHERMAN STREET, DENVER, CO, (For Respondents).
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