W.C. No. 4-435-932Industrial Claim Appeals Office.
March 8, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which determined that the claimant suffered a compensable occupational disease and awarded workers’ compensation benefits. The respondents contend the record does not support the ALJ’s finding of a compensable injury. We disagree, and therefore affirm.
The claimant worked for the respondent-employer October 1995 to July 3, 1999. Her job duties consisted of assembling cables on a wiring harness and tying the cables. In March 1999, the claimant began experiencing pain in her shoulders and a loss of strength in both arms. The claimant also reported back pain. Dr. Mars originally diagnosed a bilateral upper extremity overuse syndrome. However, Dr. Mars eventually attributed the claimant’s symptoms to a thyroid condition. On September 18, 1999, the claimant’s personal physician, Dr. Keeley, reported the claimant’s thyroid problem had been treated and was unrelated to the claimant’s upper extremity problem.
The claimant was referred to Dr. Birney for further evaluation. In reports dated March 24, 2000, and June 26, 2000, Dr. Birney opined the claimant suffered from “chronic axial thoracic pain, presumably secondary to work related exacerbation of previously asymptomatic mild right thoracic adult idiopathic scoliosis and mild mid thoracic degenerative disc disease.”
The claimant was also examined by Dr. Green, Dr. Mordick, and Dr. Clinkscales. Drs. Green and Mordick were unable to render an opinion concerning the etiology of the claimant’s upper extremity problems. Dr. Clinkscales did not render a specific diagnosis, but opined there was no causal relationship between the claimant’s employment duties and her upper extremity problems.
Crediting the claimant’s testimony and the opinions of Dr. Keeley and Dr. Birney, the ALJ determined the claimant proved by a preponderance of the evidence that her back and upper extremity problems were caused by her employment. Therefore, the ALJ found the claimant suffered a compensable injury.
A compensable injury may result from the aggravation of a pre-existing non-occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Where the aggravation is the result of a prolonged exposure occasioned by the nature of the employment and not a traumatic event, the new injury is an “occupational disease.” See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997). To prove a compensable “occupational disease,” the claimant must prove the injury resulted directly from the employment or the conditions under which the work was performed, and as a result of the exposure occasioned by the nature of the employment, and not from a hazard to which the claimant would have been equally exposed outside the employment. Section 8-40-201(14), C.R.S. 2000.
However, a claimant is not required to establish causation beyond all doubt. Rather, the claimant is only required to show facts and circumstances which indicate to a reasonable probability that there is a causal connection between the conditions of employment and the injury. Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988). In fact, causation may be proven entirely through circumstantial evidence. Peter Kiewit Sons’ Co. v. Industrial Commission, 124 Colo. 217, 236 P.2d 296
(1951); Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
We must uphold the ALJ’s factual determinations if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2000. Substantial evidence means such relevant evidence which a reasonable mind might accept as adequate to support a conclusion City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his 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).
The ALJ was persuaded by Dr. Keeley’s opinion that the claimant’s symptoms were not related to her thyroid problem. The ALJ acknowledged the possibility that the symptoms could have been caused by the claimant’s other medical problems, but found there was “no proof” of another cause, and that the claimant’s work-related activities were more likely than not the cause of the claimant’s condition. See (Tr. pp. 74-77); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). The respondents’ arguments notwithstanding, the ALJ’s determination is supported by the claimant’s testimony that she had no upper extremity problems prior to March 1999. (Tr. p. 25). The claimant also stated that the job of tying cables, which was designed to be performed standing up, was performed by her sitting down due to restrictions imposed for a non-occupational foot injury and required her to “apply quite a bit of force” (Tr. pp. 25, 27). Further, the respondents presented no evidence of any non-work related activities which could have caused her symptoms See Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992) (once claimant establishes causal connection between injury and disability, burden of proof shifts to respondent to demonstrate basis for apportioning disability between multiple causes).
Evidence the claimant’s condition did not improve when she left the employment might support an inference that the claimant’s symptoms were not work-related. However, it does not compel that inference. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion).
Moreover, medical evidence is neither required nor dispositive of causation. Rockwell International v. Turnbull, supra. Consequently, the fact that the treating physicians were unable to determine the precise etiology of the claimant’s condition, did not preclude the ALJ from finding a causal connection between the claimant’s symptoms and the employment.
Finally, the ALJ’s Specific Findings of Fact do not explicitly cite Dr. Keeley’s August 2 report, nor did the ALJ make any finding that he relied upon the report to award benefits. Therefore, the record does not support the respondents’ contention the ALJ erreoneously relied on the August 2 report which was excluded from the record.
To the extent the respondents have raised further arguments, we do not find them persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 2, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and §8-43-307, C.R.S. 2000. 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 March 8, 2001 to the following parties:
Teresa Salazar, 918 S. Bowen St., Longmont, CO 80501
Electronic Manufacturing Systems d/b/a RSP Manufacturing, 120 9th Ave., Longmont, CO 80501-4515
Norma Brehm, Reliance Insurance Company, P. O. Box 16025, Phoenix, AZ 85011
John J. Gallegos, Esq., 681 Grant St., Denver, CO 80203 (For Claimant)
Anthony D. Hall, Esq. and Richard W. Pruett, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy