Opinion
W.C. No. 4-431-024
June 14, 2004
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ Stuber) which determined the claimant sustained a compensable occupational disease, and an order of Administrative Law Judge Jones (ALJ Jones), which awarded benefits based on ALJ Stuber's order. The respondent argues ALJ Stuber misapplied the "peculiar risk test" inherent in § 8-40-201(14), C.R.S. 2003, and erroneously failed to apportion liability for the claimant's temporary disability and medical benefits. The respondent further contends the award must be reversed because the claimant's injury was "idiopathic" in origin. We affirm.
ALJ Stuber's findings may be summarized as follows. The claimant, who repaired equipment and distributed tools, was required to wear steel-toed boots and spent approximately half the workday standing and walking on concrete floors. The claimant was also required to travel off the premises to repair equipment.
The claimant developed a hammertoe deformity of the fifth toe on the left foot. The cause of this condition is unknown but may related to genetics or the "architecture" of the claimant's foot.
Crediting the testimony of the claimant's treating podiatrist, Dr. Kassel, the ALJ found that the hammertoe caused the claimant's fifth digit to rub against the steel-toed boot, which in turn caused the development of a painful corn. The pain caused the claimant to seek medical treatment, and on August 15, 1997, Dr. Kassel performed surgery to release tendons causing the hammertoe. However, the surgery did not relieve the claimant's problem and in October 1997 Dr. Kassel amputated the affected digit. A second tendon release was completed in June 1998. Thereafter, the claimant developed reflex sympathetic dystrophy (RSD), which ALJ Stuber found was caused by the multiple surgeries.
Under these circumstances, ALJ Stuber concluded the claimant suffered a compensable occupational disease described as an "aggravation of [the claimant's] left fifth toe hammertoe deformity." Based on ALJ Stuber's order, ALJ Jones later entered an order awarding temporary disability and medical benefits.
I.
On review, the respondent contends that ALJ Stuber misapplied the "peculiar risk" test inherent in § 8-40-201(14). The respondent asserts the claimant's hammertoe condition and pain were not unique to the claimant's employment. Relying on the testimony of the respondent's expert, Dr. Shaw, the respondent reasons that the cause of the hammertoe was not industrial, and that any aggravation of the condition was not unique to the claimant's employment. We perceive no error.
Section 8-40-201(14) defines an occupational disease as follows:
"Occupational disease" means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment. (Emphasis added).
The italicized portion of the statute effects the "peculiar risk" test which distinguishes proof in occupational disease cases from ordinary accidental injury cases. The test requires that the risk causing the disease must be present in the circumstances of the claimant's employment to a greater degree and in a substantially different manner than is true of employment generally. However, the conditions of employment need not be the only cause of the disease, and a claimant is entitled to compensation if the hazards of employment cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought." See Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993). If an industrial exposure is not a necessary precondition to the development of a disease then "the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." Id. at 825.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, ALJ Stuber found the conditions of the claimant's employment, namely wearing steel-toed boots and standing and walking on concrete floors, aggravated the claimant's preexisting hammertoe condition and caused the need for medical treatment. This finding represents a plausible interpretation of Dr. Kassel's testimony and reports. (Tr. September 20, 2001, Pp. 15, 35, Kassel Depo. Pp. 9, 13; Exhibit Y, Report of Dr. Kassel dated August 30, 2001). The mere fact that Dr. Kassel testified that other kinds of shoes could cause pressure on the toe, and the Dr. Shaw disagreed with Dr. Kassel's opinions, did not require ALJ Stuber to reach a different result. Indeed, there was evidence that the claimant did not wear steel-toed boots when off the job, but confined himself to wearing softer tennis shoes or slippers. Moreover, when the claimant was at home he tended to rest his feet rather than walk or stand. (Tr. September 20, 2001, P. 59, Tr. November 19, 2001, P. 6).
We recognize there was some conflicting evidence concerning whether and under what circumstances the claimant was required to wear steel-toed boots. However, the ALJ implicitly resolved this conflict against the respondent, and we may not interfere with that determination. It follows there is ample evidence that the claimant's occupational disease was aggravated to some reasonable degree by the specific requirements of his employment and the conditions under which the work was performed.
II.
The respondent next contends that ALJ Stuber erred by failing to apportion liability for the occupational disease based on the existence of industrial and non-industrial causes. The respondent argues the evidence shows the claimant's disability was the result of multiple factors, including the preexisting hammertoe condition, and requests that we remand for an order apportioning liability. We are not persuaded.
In Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992), the court held that if the claimant proves the conditions of employment have proximately caused or aggravated a disease, the burden of showing the existence and extent of other causes for purposes of apportionsment falls on the respondent. Further, the court held that the question of whether the employer has met its burden is a question of fact for the ALJ.
Here, ALJ Stuber cited Cowin and explicitly recognized that the respondent carried the burden of proof on apportionment. (Order of ALJ Stuber, P. 4). However, ALJ Stuber did not order any apportionment, and we infer that he implicitly rejected the evidence which might have supported apportionment. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (evidence not explicitly discussed is presumed to have been rejected, and we may consider findings necessarily implied by the order).
The evidence certainly did not compel ALJ Stuber to apportion liability in this case. First, he found that, despite the preexisting hammertoe condition, there would have been no problem with the claimant's foot but for the aggravating circumstances of the employment. (Findings of Fact 15-16). Moreover, no physician provided a specific basis for apportioning between aggravation caused by the steel-toed boots and allegedly caused by footwear which the claimant wore elsewhere. Thus, there was no error in the failure to apportion and we decline the respondent's invitation to remand the matter for such a determination.
III.
The respondent next contends the ALJ Stuber erred in finding the claim compensable because the hammertoe condition was "idiopathic" in origin. Because this condition was idiopathic, the respondent argues the analysis must shift to the question of whether the employment presented a "special hazard." We are not persuaded.
The "special hazard" doctrine applies where the claimant's injury is precipitated by, or directly caused by, a preexisting condition. However, the doctrine has no application where 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).
Here, ALJ did not find the hammertoe condition "precipitated" or was the direct cause of the claimant's injury. Rather, he found that the conditions of employment, wearing steel- toed boots and prolonged standing and walking, acted on the preexisting hammertoe so as to produce the need for treatment. Thus, the special hazard doctrine does not apply because the conditions of employment were the precipitating cause of the injury.
However, even if the doctrine did apply, a different result would not obtain. The clear import of ALJ Stuber's findings is that the requirement to wear steel-toed boots while standing and walking elevated the risk of injury to the claimant. Steel-toed boots and prolonged standing and walking therefore constitute special hazards because they contributed to the degree of injury sustained and are not ubiquitous in nature. See National Health Laboratories v. Industrial Claim Appeals Office, supra.
The claimant's remaining arguments are factual in nature and we find the ALJ's order is supported by the record. Specifically, substantial albeit conflicting evidence supports the finding that the claimant was required to wear steel-toed boots. Thus, we may not interfere with the order.
IT IS THEREFORE ORDERED that the orders of ALJ Stuber and ALJ Jones dated January 28, 2002, and January 8, 2003, respectively, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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 June 14, 2004 by A. Hurtado.
Manuel Gabaldon, 1997 Dexter St., Broomfield, CO 80020
Xcel Energy, 550 15th St., #500, Denver, CO 80202
G. E. Young Co., 4251 Kipling St., #510, Wheat Ridge, CO 80033
Robert M. Maes, Esq., 1610 Gaylord St., Denver, CO 80206 (For Claimant)
Douglas J. Kotarek, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)