W.C. No. 4-542-742.Industrial Claim Appeals Office.
June 18, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
At age 6 or 7 the claimant suffered a ruptured appendix. As a result the claimant was left with an appendectomy incision scar and hernia. The claimant was able to perform heavy labor for many years before his employment at the Thompson School District without any hernia pain. However, the claimant alleged a groin injury while moving tables at work on May 7, 2001. The claimant was subsequently diagnosed with a hernia which was surgically treated. The claimant later experienced a recurrence of hernia pain and was diagnosed with postoperative bleeding, or bowel peroration.
The ALJ found the claimant did not report any traumatic event to the treating physicians. Similarly, the claimant applied for long-term disability benefits and did not allege any causal connection between his disability and the employment. Further, the ALJ found that neither Dr. Norman, Dr. Collins nor Dr. Bloomquist attributed the claimant’s condition to his employment at the Thompson School District. Under these circumstances, the ALJ determined the claimant failed to prove a causal connection between the employment and his hernia injury. Therefore, the ALJ denied the claim. The claimant timely appealed.
The claimant’s Petition to Review contains general allegations of error. Section 8-43-301(8), C.R.S. 2002. Furthermore, the claimant has not filed a brief in support of the Petition. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Initially we note that under § 8-43-301(4), C.R.S. 2002, the petitioner shall be afforded 20 days after the date of the certificate of mailing of the notice of briefing schedule to file a brief in support of the petition to review and the opposing party is entitled to 20 days after the date of the certificate of mailing of the petitioners’ brief to file a brief in opposition thereto.
The record was transmitted for review on May 1, 2003, with a note that “no briefs” were filed. Further, the certificate of mailing on the notice of briefing schedule in this matter is undated.
Our letter dated May 15, 2003, which acknowledged receipt of the record notified the parties that the record did not contain any briefs and afforded the parties 10 days from the date of our letter to file a copy of any timely filed briefs. However, because neither party has responded to our acknowledgment letter, we conclude the parties have waived any argument that the briefing period has not expired or that the record was prematurely transmitted to us. Therefore, we shall proceed to review the ALJ’s order.
Under § 8-43-301(8), C.R.S. 2002, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions and must occur while the claimant is “performing service” arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2002.
The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury where the industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). However, where the precipitating cause of an injury is a pre-existing, non-industrial condition which the claimant brings to the workplace, the injury is not compensable unless a “special hazard” of the employment combines with the pre-existing condition to cause the injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992). This principle is known as the “special hazard” rule. Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury due to the claimant’s pre-existing condition does not bear sufficient causal relationship to the employment to “arise out of” the employment. Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). Further, the ALJ’s order reflects his consideration of the proper legal standard and there is substantial evidence in the record to support the ALJ’s determination that the claimant failed to prove his injury was the result of a “special hazard” in the workplace. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (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). Moreover, the ALJ’s findings support the order denying benefits. Consequently, the claimant has failed to establish grounds which afford us a basis for granting appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 18, 2003 to the following parties:
Leonard Pedroncelli, 29272 County Road 13, Loveland, CO 80537
Thompson School District, 535 N. Douglas Ave., Loveland, CO 80537
Legal Department, Pinnacol Assurance-Interagency Mail
Bob Ring, Esq., 2550 Stove St., Bldg. C, Fort Collins, CO 80525 (For Claimant)
Grant C. Butterfield, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado