W.C. No. 4-673-066.Industrial Claim Appeals Office.
July 16, 2007.
FINAL ORDER
The claimant seeks review of a supplemental order on remand of Administrative Law Judge Jones (ALJ) dated March 29, 2007, that denied and dismissed her claim for benefits. We affirm.
This matter has been before us previously. In our order of November 3, 2006 we remanded for additional findings. On remand the ALJ made the following findings of fact. The claimant suffered an injury when she was attending a class for recertification of her state licensure. The claimant pushed herself out of a chair that had arms and felt something snap in her right arm. An MRI revealed a rotator cuff tear, as well as arthritic changes in her shoulder. Dr. Erickson opined that the claimant might have had a preexisting impingement syndrome, which finally tore when she lifted herself from the chair. Dr. Primack noted that the claimant had structural problems in the right shoulder and her injury could have happened in a non-work related activity. The ALJ determined that the claimant’s right rotator cuff tear was precipitated by the claimant’s underlying preexisting structural problems. Because the claimant’s pre-existing underlying structural problems precipitated the claimant’s rotator cuff tear, the special hazard doctrine applied to the case. The claimant’s rising from the chair did not constitute a special hazard of employment. The chair was a ubiquitous condition, which could have been encountered anywhere. The ALJ determined that the claimant’s pre-existing arthritic condition was the direct cause of the claimant’s rotator cuff tear. The ALJ concluded that the rotator cuff tear was not a compensable injury and denied the claim for benefits.
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On appeal the claimant contends that there is absolutely no testimony or medical evidence that the claimant’s injury was either precipitated by or caused by the claimant’s pre-existing arthritic condition. We disagree.
The question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251
(Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2006. Under this standard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here a MRI revealed that the claimant had a large, full thickness central cuff tear and an arthritic acromioclavicular joint. Exhibit J. Dr. Erickson stated that the claimant had been a long-time impingement sufferer. Exhibit K. Dr. Primack stated in a report dated March 2, 2006 that pushing off from the chair loaded the rotator cuff tendon complex and therefore he considered the lesion at the claimant’s right shoulder to be work-related. Dr. Primack felt that getting up from the chair was “the straw that broke the camel’s back.” Exhibit 4 at 3. However, Dr. Primack, in a report dated April 6, 2006, although again stating that pushing off from the chair was “the straw that broke the camel’s back,” also said that clearly the injury could have occurred elsewhere at any time due to her underlying structural problems. Exhibit N.
As we noted in our previous order, where the precipitating cause of an injury is a pre-existing 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 or increase the degree of 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); Gaskins v. Golden Automotive Group, L.L.C., W.C. No. 4-374-591
(August 6, 1999) (injury when pre-existing condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition). In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v.
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Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here the ALJ specifically found, with record support, that the precipitating cause of the claimant’s rotator cuff tear was a pre-existing underlying structural problem. See H H Warehouse v. Vicory 805 P.2d 1167 (Colo.App. 1990). The opinions of Dr. Erickson and Dr. Triggs, and even the initial opinion of Dr. Primack would support a contrary result. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). May 3, 2007, is affirmed
IT IS THEREFORE ORDERED that the ALJ’s supplemental order on remand dated March 29, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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Patricia F. Roberts, 5222 Mt. Arapaho Circle, Fredrick, CO.
Michael P. Dominick, Esq., Boulder, CO, (For Claimant).
Patricia J. Clisham, Esq., Clisham, Satriana Biscan, LLC., Denver, CO, (For Respondent).
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