W.C. No. 4-663-148.Industrial Claim Appeals Office.
August 17, 2006.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 8, 2006, that found the claimant suffered an injury to his back arising out of and in the course and scope of his employment with the respondent. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed by the respondent as an electrician. On July 19, 2005, the claimant bent over to pick up a pair of wire strippers, which weighed only 10-12 ounces. The claimant experienced acute low back pain radiating to his left leg. He was then unable to straighten up. On July 20, 2005 the claimant was examined by Dr. Richman who reported a history of chronic, recurrent low back pain with exacerbations of pain approximately one time per year. Dr. Richman diagnosed a probable strain and prescribed medications. On July 22, 2005 the claimant was reexamined by Dr. Richman who reported that the claimant stated that the pain felt like his normal symptoms that arose about once per year. On September 14, 2005 Dr. Richman reexamined the claimant and determined that claimant’s low back pain at that point was not related to a work injury. Dr. Richman agreed that the claimant needed additional treatment, but he informed the claimant that additional treatment would have to be the liability of someone other than the employer. The claimant saw Dr. Clothier on November 2, 2005 and reported a history of increased pain for three or four days, but did not report the July 19 injury. Dr. Sandell examined the claimant on December 7, 2005 and diagnosed degenerative changes. Dr. Hall performed an independent medical examination for the claimant and diagnosed mechanical low back pain, which was either discogenic or facet joint in origin, as well as piriformis syndrome.
The ALJ further found that Dr. Richman testified that the claimant had a preexisting degenerative condition. Dr. Richman explained that the claimant’s low back pain eventually localized to posterior element pain or muscle pain. He explained that lumbar flexion is inconsistent with injury to a posterior element, but it was consistent with exacerbation of preexisting posterior element pain. Dr. Richman further explained that without preexisting degeneration, posterior element pain would only be associated with extension or rotation, but not with flexion. With preexisting degeneration, flexion can cause a flare up of posterior element pain. Dr. Richman’s testimony was found by the ALJ to be credible and persuasive.
The ALJ determined that the preponderance of the evidence demonstrated the claimant suffered an accidental injury arising out of and in the course of his employment with the employer on July 19, 2005. The ALJ found that though the claimant clearly had preexisting degenerative changes in his lumbar spine, he had not required regular medical care for that condition. The ALJ determined that the July 19th incident aggravated a preexisting condition, causing an increase in symptoms and that, although the lumbar flexion that caused the increased symptoms might have occurred in an activity other than work, this incident arose out of and in the course of work.
On review the respondent contends that neither substantial evidence nor the applicable law supports the conclusions that the claimant suffered an injury to his low back arising out of and in the course and scope of his employment. We disagree.
The ALJ’s order contains factual determinations supporting his conclusion that the claimant proved a compensable injury. We must uphold the ALJ’s findings if supported by substantial evidence and plausible inferences drawn from the record. Section 8-433-01(8), C.R.S. 2005; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Admittedly, the ALJ generally found Dr. Richman to be credible and persuasive, and in his report the doctor did not attribute the claimant’s back problems to his work. Exhibit 4. However, Dr. Richman’s testimony is susceptible to various interpretations. He testified that the claimant’s condition could have been caused by any type of bending, whether it occurred at home or at work. Tr. at 84. He acknowledged that the pre-existing problem may have worsened at the moment of the July 19 incident when he bent forward, but this could have occurred at any time. Tr. at 91-92. Thus, portions of Dr. Richman’s testimony are consistent with a finding of an aggravation of a pre-existing condition, as found by the ALJ.
The ALJ was persuaded that the claimant established a causal connection between the accident on July 19, 2005 and his subsequent need for medical treatment. Therefore, the ALJ’s order is not inconsistent with the applicable law. In addition there is support in the medical records of Dr. Hall and Dr. Sandell for ALJ’s finding of a causal connection between the July 19 incident and the claimant’s back condition. Exhibts 1 and Exhibit 2.
A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. Furthermore, as argued by the claimant, the existence of a pre-existing disease does not preclude the claimant from suffering a compensable injury. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990). Rather, the claimant has suffered a compensable injury if the industrial accident is the proximate cause of the claimant’s need for medical treatment or disability. Section 84-1-301(1)(c), C.R.S. 2005. An industrial accident is the proximate cause of a claimant’s disability if it is the necessary precondition or trigger of the need for medical treatment. Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
For example, pain is a typical symptom from the aggravation of a pre-existing condition. Insofar as the pain triggers the claimant’s need for medical treatment, the claimant has suffered a compensable injury. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). Further, the claimant is entitled to medical benefits so long as the pain is proximately caused by the industrial aggravation and not the underlying pre-existing condition.
The ALJ took notice of claimant’s history of prior injuries, aggravations and exacerbations but concluded that the evidence established that the July 19 incident aggravated the preexisting condition, causing an increase in symptoms which required additional medical care. Whether the claimant’s condition was a logical and recurrent consequence of the original injury, rather than an aggravation of that injury, is a question of fact. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The evidence was susceptible of conflicting inferences with respect to whether the claimant sustained a compensable aggravation of a pre-existing condition, or merely experienced an exacerbation of symptoms attributable to a prior injury. It was the ALJ’s sole prerogative to resolve the conflicts. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). There is substantial evidence to support the ALJ’s finding that the claimant sustained a compensable aggravation in the July 19 incident, and we may not set that determination aside. See 8-43-301(8), C.R.S. 2005; May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988); Kaltenborn v. Metro Appliance Center W.C. 4-002-231, 4-123-182 July 23, 1993.
The respondent also argues that the ALJ erred in failing to analyze whether the employment presented a “special hazard.” We disagree. The “special hazard” doctrine only applies where the claimant’s injury is precipitated by, or directly caused by, a preexisting condition. However, the doctrine has no application where, as here, the conditions of employment act on the preexisting condition so as to produce disability. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); H H Warehouse Vicory, 805 P.2d 1167
(Colo.App. 1990).
IT IS THEREFORE ORDERED that the ALJ’s order issued March 8, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
David Shurtleff, Colorado Springs, CO, Colorado Springs School District R-11, Attn: Hank Hahne, Colorado Springs, CO, Sheila Toberg, Esq., Colorado Springs, CO, (For Claimant).
Richard A. Baovarnick, Esq., Denver, CO, (For Respondent).