W.C. No. 3-726-079Industrial Claim Appeals Office.
April 28, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded the claimant permanent total disability (PTD) benefits. The respondents contend the ALJ’s findings of fact do not support the legal conclusion that the PTD was caused by the industrial injury. We affirm.
In December 1983, the claimant sustained admitted injuries diagnosed as lumbar, thoracic and cervical strains. The claimant attended a pain management program in the spring of 1984. The claimant was discharged in June 1984 with substantially reduced pain symptoms and restrictions against lifting more than 30 pounds. (Fining of Fact 2). The claimant returned to work at modified duty.
In December 1984, the claimant gave birth to a child. In a medical report dated January 11, 1985, the claimant’s treating physician reported the claimant “had some low back pain in the last two moths of her pregnancy,” but the diagnoses continued to include chronic lumbar, thoracic and cervical muscle strains. The claimant returned to modified employment, but began to experience increased back pain associated with repetitive work activities which required twisting of the back. (Finding of Fact 6). In January 1986, the claimant was removed from work because of pain problems and has remained unemployed since that time. The ALJ found the claimant reached maximum medical improvement no earlier than August 1986 and no later than August 1989.
In April 2003, the claimant was examined by Dr. Ryan for an independent medical examination. Dr. Ryan opined the claimant is suffering from a chronic pain syndrome of the back caused by the 1983 industrial injury. (Dr. Ryan Depo. P. 9). He further testified that the limitations caused by this condition have made it unlikely the claimant will be able to return to work. The ALJ found this testimony credible and persuasive. (Finding of Fact 25).
The ALJ specifically found the claimant’s pain “resolved” after the pain program, was “aggravated” by the pregnancy, and worsened after March 1985 “as a result of the physical duties” performed in the modified employment. (Finding of Fact 26). The ALJ further found the claimant “has not been able to return to work for Kodak since 1985 due to her pain and restrictions caused from the December 1983 injury.” Thus, the ALJ awarded PTD benefits.
On review, the respondents state that they “are not necessarily challenging” whether the findings of fact are supported by substantial evidence. Instead, they contend the findings, particularly Finding 26, do not support the ALJ’s conclusion that the PTD was caused by the industrial injury. According to the respondents, Finding 26 establishes that the claimant’s PTD was caused by intervening events which include the 1984 pregnancy and an intervening injury or disease which developed when the claimant returned to work in 1985. We are not persuaded.
The claimant is not required to prove the effects of the industrial injury are the sole cause of the PTD as long as they are a significant cause. An injury need not be “significant” in terms of apportionment, but there “must be a direct causal relationship between the precipitating event and the resulting disability.” Seifried v. Industrial Commission, 736 P.2d 1262, 1263 (Colo.App. 1986). However, if a disability is the result of an efficient intervening cause, then the disability is not compensable. This determination requires the ALJ to “ascertain the nature and extent of the claimant’s residual impairment from the industrial injury.” Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
Ultimately, the question of whether the disability is the result of the industrial injury or an intervening event is one of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002). Consequently, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). Further, the ALJ’s order need not address every piece of evidence or explicitly reject every possible inference. The findings are sufficient if they reveal the factual and legal bases of the award, and inferences not specifically addressed are considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ expressly credited the testimony of Dr. Ryan that the claimant’s disability is the result of a chronic pain syndrome caused by the 1983 injury. That finding alone is sufficient to support the order Cf. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra. It is true the ALJ found that the claimant’s pregnancy “aggravated” the claimant’s back and the subsequent employment resulted in a “worsening” of the claimant’s condition. However, in light of the ALJ’s decision to credit Dr. Ryan’s testimony, we understand the ALJ to have found that ultimate cause of the claimant’s PTD was the underlying injury of 1983, and the subsequent events, while they may have elicited increased symptoms of the underlying condition, were not the ultimate cause of the PTD. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The respondents’ argument notwithstanding, they could not have been surprised that the issue of causation was before the ALJ. Indeed, the claimant had the initial burden of proof on this issue, and the respondents presented expert testimony which was clearly aimed at proving the cause of the PTD was an intervening event or events. To the extent the respondents wished to raise Subsequent Injury Fund (SIF) liability, the issue involves an affirmative defense which they waived by failing to effect joinder of the SIF in a timely fashion. See Safeway, Inc. v. Industrial Claim Appeals Office, 968 P.2d 162 (Colo.App. 2002).
We deny the claimant’s request for attorney fees. The respondents made a plausible argument, based of Finding 26, that the findings of fact do not support the legal conclusions. Cf. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 20, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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 April 28, 2004 by A. Hurtado.
Cheryl Vanderwyk, 607 Countryside Dr., Fort Collins, CO 80524
Eastman Kodak Co., Windsor, CO 80551
Jan McConnaughey, Esq., Eastman Kodak Co., 343 Stalte St., Rochester, N.Y. 14650-0322
Pam Moon, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
W. M. Busch, Jr., Esq., 903 N. Cleveland, #A, Loveland, CO 80537 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)