W.C. No. 4-397-534Industrial Claim Appeals Office.
May 18, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant suffered a compensable injury and awarded workers’ compensation benefits. We affirm.
The claimant suffered a lumbar strain on December 9, 1997, while working for another employer. On February 27, 1998, the claimant began working for Brakes Plus Inc. (Brakes Plus), as an auto mechanic. The claimant stated that shortly after beginning work on September 26, 1998, he experienced a sudden, severe pain in his lower back as he walked across the employer’s concrete floor. The claimant was subsequently diagnosed and treated for a herniated disc.
The ALJ found the claimant’s job duties required him to work on multiple cars per shift to remove tires. The ALJ also found the job required the claimant to twist, turn and lift weights up to 100 pounds. The ALJ recognized that the claimant had a previous back injury, and found that the pre-existing condition was “aggravated” by his “job duties” at Brakes Plus Inc. (Findings of Fact 4, 5; Conclusions of Law A).
The respondents contend the ALJ’s findings of fact are inconsistent because the ALJ found the claimant suffered a “distinct injury” on September 26, and an “occupational disease.” We disagree.
The distinction between an “occupational disease” and an “accidental injury” is that an “accidental injury” is the result of an event which is traceable to a particular time, place and cause. Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964). In contrast, an “occupational disease” is acquired in the ordinary course of employment and is a natural incident of the employment. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). The fact that a condition becomes acutely symptomatic at a particular moment does not transform it from an occupational disease into an accidental injury. Campbell v. IBM Corporation, supra; Masdin-Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984). To the contrary, some conditions can be traced to a particular place and time, but analyzed as either an accident, or an occupational disease, depending on the cause. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Campbell v. IBM Corporation, supra.
Although the ALJ found that the claimant “felt a sharp severe pain in his lower back while walking across the shop,” the ALJ did not find the claimant suffered a “distinct” or traumatic injury from walking across the floor on September 26. Rather, as we read the ALJ’s order, he found that the injury was the culmination of the claimant’s repetitive twisting, turn and lifting activities at work. Consequently, the ALJ found that the claimant suffered a compensable injury in the nature of an “occupational disease” which manifested on September 26.
Alternatively, the respondents contend the ALJ erroneously found the claimant sustained a compensable occupational disease. The respondents argue that the ALJ misapplied the law in holding them responsible for the claimant’s disease without determining whether the claimant was “last injuriously exposed” to the hazards of the disease at Brakes Plus. Again we disagree.
Section 8-41-304(1), C.R.S. 1999, provides in pertinent part that:
“Where compensation is payable for an occupational disease, the employer in whose employment the employer was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefore, without right of contribution from any prior employer or insurance carrier.”
Contrary to the respondents’ contention, § 8-41-304(1) presumes the existence of an occupational disease before the last injurious exposure rule is applicable. See Johnson- Reynold v. Virtual Industries, Inc., W.C. No. 4-266-253 (July 23, 1999) Holmes v. Colorado State Department of Highways 28, W.C. No. 4-196-538 (March 13, 1995). This is illustrated by the fact that the statute begins with the statement, “Where compensation is payable for an occupational disease.” Here, the issue was whether the claimant proved the existence of an occupational disease in the first instance. Therefore, § 8-41-304(1) is not applicable.
Furthermore, the last injurious exposure rule only applies where the claimant is exposed to the hazards of the disease during successive employments or involving multiple insurers. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). There is no finding or assertion that such facts exist here. Therefore, the ALJ did not err in failing to apply the last injurious exposure rule.
The respondents also contend that because the claimant had a pre-existing condition his injury is not compensable without establishing a special hazard of employment. The respondents contend that the employer’s concrete floor is an ubiquitous condition, and not a “special hazard.” Therefore, they argue the ALJ erred as a matter of fact and law in finding the claimant proved a compensable injury.
We do not dispute that 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).
However, proof of a “special hazard” is not was not required where the direct cause of the injury is the employment not the pre-existing condition. For example, in H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990), the claimant fractured his arm while opening a door at work. Although the arm was weakened by a pre-existing but undetected cancerous growth, the court held that the injury was precipitated by the sudden opening of the door. Thus, the court concluded that “but for” the act of opening the door, the claimant’s pre-existing condition would not have resulted in an injury, and therefore, the “special hazard doctrine” did not apply.
Here, the ALJ expressly found that the claimant’s disability and need for medical treatment was caused by the industrial aggravation of the pre-existing condition and not the pre-existing condition. (Conclusion of Law A). In other words, the ALJ implicitly determined that “but for” the repetitive activities required of the claimant’s employment, the claimant would not have been injured. The ALJ’s finding is supported by evidence that the claimant suffered no permanent medical impairment from the previous injury and was released to return to his regular employment. Therefore, we must uphold the finding on review, and it is immaterial the record contains medical evidence, which if credited, might support a contrary result. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Furthermore, the ALJ’s findings support his determination that the claimant was not required to prove a “special hazard” of the employment. Consequently, we do not consider the respondents’ argument that a concrete floor is an ubiquitous condition.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 1999, 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. 1999. 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 May 18, 2000
to the following parties:
Larry J. Shellenberger, 2641 Bannister Ct., Colorado Springs, CO 80920
Brakes Plus Inc, 6911 S. Yosemite St., #100, Englewood, CO 80112-1415
Gregory Chernushin, Esq., 1530 S. Tejon, Colorado Springs, CO 80906 (For Claimant)
Pinnacol Assurance, Laurie A. Schoder, Esq., Interagency Mail (For Respondents)
BY: A. Pendroy