W.C. No. 4-547-185Industrial Claim Appeals Office.
December 1, 2003
FINAL ORDER
The respondent seeks review of a Supplemental Order of Administrative Law Judge (Henk) which determined the claimant suffered a compensable injury and awarded temporary disability benefits. We affirm.
The claimant was employed as a long-haul truck driver. He previously sustained a work-related injury diagnosed as anal fistulas, which required 5 surgical procedures.
The claimant did not perform long-haul truck for approximately 3 ½ years prior to September 2000. In December 2001 or January 2002, the claimant began noticing increased pain in his low back and buttocks.
The ALJ found that commencing September 2000 the claimant drove 6 trips per week to and from Grand Junction, Colorado leaving at approximately 9:00 p.m. and returning 11 to 15 hours later. On many trips the claimant returned with an empty trailer or without a trailer. The ALJ also found that the “empty truck, on the return trip to Denver, caused unusual bouncing about the cab, while the claimant was seated at an angle or sideways due to pre-existing anal pain.” (Finding of Fact 13). Further, the ALJ determined that the hydraulic driver’s seat would sometimes bounce so high the claimant would strike his head on the ceiling of the cab.
Based upon these findings the ALJ determined the claimant sustained an occupational disease to his low back as a result of “awkward sitting while driving for 8 or more hours per day, 6 days per week, between Denver and Grand Junction.” (Finding of Fact 13). Further, the ALJ found that commencing May 17, 2002, the claimant was medically restricted from performing his regular employment and no modified employment within the claimant’s restrictions was offered. Therefore, the ALJ awarded temporary total disability benefits commencing May 17, 2002.
On review the respondent first contends the ALJ’s finding of a compensable injury is not supported by the record or the applicable law. In particular, the respondent contests the ALJ’s finding that the claimant drove “8 or more hours per day, 6 days per week.” The respondent contends the ALJ’s finding is not consistent with the claimant’s testimony that he drove 5 hours then dropped off a load and drove another 5 hours. (Tr. p. 32). We disagree.
The ALJ found the claimant drove 8 or more hours per day but did not find the claimant drove non-stop. Thus, the claimant’s testimony that he drove two-5 hour periods each day and sometimes worked up to 16 hours in a shift supports Finding of Fact 13. (Tr. pp. 8, 32).
Next, the respondent contends the ALJ erroneously awarded temporary disability benefits. The respondent contends the claimant had no medical restrictions prior to May 17 but quit working on May 16 due to safety concerns, not the industrial disability.
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury has caused a “disability,” and the claimant left work as a result of the industrial disability. Section 8-42-103(1), C.R.S. 2003; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546 (Colo. 1995). Contrary to the respondent’s contention there is no statutory requirement that the claimant present medical evidence of work restrictions as a prerequisite to the recovery of temporary disability benefits. In fact, in Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997), the court suggested that the claimant’s testimony alone might be sufficient to establish a temporary “disability.”
Furthermore, where medical evidence is presented it is the ALJ’s sole prerogative as the fact finder to determine the sufficiency and probative weight of the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The timing of the physician’s opinion on the extent and nature of the claimant’s industrial disability is not dispositive. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
The claimant was off work for 6 weeks commencing February 12, 2002 for treatment of his pre-existing diabetes. It is undisputed that Department of Transportation (DOT) regulations preclude an insulin dependent worker from driving truck. As a result the employer offered the claimant modified employment as a dispatcher.
The claimant testified that he attempted to return to work as a dispatcher on May 16, 2002. The claimant’s testimony is subject to conflicting inferences, however there is substantial evidence that the claimant could not perform the dispatcher job because pain from the industrial injury precluded him from climbing up and down stairs or moving heavy truck doors. (See Tr. pp. 31, 99).
In addition, the employer’s witness testified that on May 17 the employer referred the claimant to Dr. Ladwig (Tr. p. 82) who restricted the claimant from lifting more than 10 pounds, repetitive lifting, carrying, pushing and pulling, and climbing stairs. Dr. Ladwig also recommended the claimant alternate walking, sitting and standing. Dr. Ladwig increased the claimant’s restrictions on May 24 and May 28. Thus, Dr. Ladwig’s medical reports support the ALJ’s implicit determination that as a result of the industrial disability, the claimant was physically unable to perform any work offered by the employer effective May 16, 2002. See Lymburn v. Symbios Logic, supra.
The ALJ’s findings also support the conclusion the claimant left the employment as a result of the industrial disability. Consequently, the ALJ did not err in awarding temporary disability benefits effective May 17, 2002.
However, the respondent contends that because the claimant resumed insulin treatments on May 20, 2002, his inability to perform his regular employment as a long-haul driver was due to his non-industrial diabetes not the industrial injury. The ALJ was not persuaded and we perceive no basis to disturb her determination.
An intervening condition does not sever the causal connection between the industrial injury and the claimant’s wage loss unless the claimant’s disability is triggered by the intervening event. See Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). This is true because the claimant is not required to prove that the industrial injury is the “sole” cause of his wage loss to recover temporary disability benefits. See also Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Further, the existence of an “intervening event” is an affirmative defense to the respondent’s liability. Consequently, it is the respondent’s burden to prove that the claimant’s wage loss is attributable to the intervening injury or condition and not the industrial injury. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983).
Whether the respondent sustained its burden to prove the claimant’s disability was triggered by an intervening event is a question of fact for resolution by the ALJ. City of Aurora v. Dortch, 799 P.2d 462
(Colo.App. 1990). Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
Although, DOT regulations precluded the claimant from driving truck while taking insulin, the employer provided the claimant alternative employment as a dispatcher and the ALJ implicitly found the claimant could have performed this employment but for the industrial injury. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ’s order). Because the claimant was already temporarily totally disabled as a result of the industrial disability the claimant’s resumption of insulin shots on May 20, 2002, was not an intervening cause of his wage loss. This is true because a claimant cannot be more than temporarily totally disabled. Under these circumstances, the ALJ reasonably inferred that the DOT driving prohibition due the claimant’s insulin dependence was not the cause of the claimant’s wage loss.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 11, 2003, 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. 2003. 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 order were mailed to the parties at the addresses shown below on December 1, 2003 by A. Hurtado.
Jorge Saenz-Rico, 9222 Pierce, Westminster, CO 80021
Robin Young, Yellow Transportation, Inc., P. O. Box 7932, Overland Park, KS 66207
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)