Summary
In Marin, the ALJ found that the claimant's left shoulder injury was the natural and proximate result of a previous right shoulder injury, where the claimant pushed a cart at work and experienced left shoulder symptoms as a result of the right shoulder injury.
Summary of this case from In re Gauvin v. Microfilm, W.C. NoOpinion
W.C. No. 4-520-473
November 7, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied and dismissed a claim for a left shoulder injury. The claimant argues the findings do not support the conclusion that the left shoulder injury was caused by a previous injury to the right shoulder. We affirm.
The claimant, a warehouseman, sustained an injury to his right shoulder in November 2000. At the time of that injury, which is the subject of another claim, the employer was covered by an insurer which is not a party to this claim (W.C. No. 4-520-473). The claimant underwent surgery for the right shoulder injury and was released to return to work.
On October 5, 2001, the employer was insured by respondent ESIS. On that date the claimant strained his left shoulder while pushing a heavy wheeled cage. When asked which shoulder he was using when this injury occurred, the claimant testified that he "sized them up evenly and then when the right one starts feeling pain the left one starts taking over." (Tr. p. 12).
The ALJ credited the claimant's testimony concerning the mechanism of the injury, finding the claimant injured the left shoulder by "overcompensating for the right shoulder injury." Under these circumstances, the ALJ concluded "the left shoulder is a part of the workers' compensation claim for the right shoulder injury." Consequently, the ALJ denied and dismissed the claim against ESIS.
On review, the claimant argues the ALJ's findings do not support the conclusion the left shoulder injury is a compensable consequence of the November 2000 right shoulder injury. In support of this proposition the claimant principally relies on our decision in Williams v. Richtman Printing, W.C. No. 4-358-101 (April 25, 2002). The respondents argue the ALJ's findings support the denial and that Williams was wrongly decided.
In Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970), the court held that if an underlying industrial injury is "determined to have arisen out of and in the course of claimant's employment obviously results flowing proximately and naturally therefrom come under the aegis of the statute." In Standard Metals, the claimant fractured two bones of the lower right leg in an industrial accident. Subsequently, he slipped and fell on an icy sidewalk and refractured the bones. The court held the refractures were compensable consequences of the industrial injury because medical evidence supported the ALJ's finding that the refractures probably would not have occurred if the bones and leg had not remained in a weakened condition from the original injury.
However, if the claimant sustains a compensable industrial injury and is reinjured as a result of an efficient intervening cause, the reinjury is not compensable "merely because the later accident might or would not have happened if the employee had retained all his former powers." Post Printing Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934). In Post Printing the claimant sustained an industrial right knee injury which was compensated. Later, the claimant fell on a snowy sidewalk and broke the right ankle. The court rejected the theory that the fall on the sidewalk was a continuation or aggravation of the knee injury, finding that the "second accident was brought about as any similar accident might be in the case of a person possessed of a like degree of physical power, mental alertness, and caution, wholly regardless of whether there was any previous injury."
Generally, the question of whether an injury is the result of an efficient intervening cause is a question of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002); see also, University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The claimant's assertions notwithstanding, the ALJ's findings support the conclusion that the left shoulder injury was a natural and proximate consequence of the right shoulder injury. Here, the claimant's testimony establishes that on October 5, 2001, he experienced right shoulder pain when pushing the cart. This pain was attributable to the weakened or painful condition caused by the right shoulder injury. Moreover, this pain caused the claimant to place too much stress on the left shoulder, and the left shoulder strain ensued. Thus, there is ample evidence in the record that the November 2000 right shoulder injury was the factual, and hence legal cause of the left shoulder injury.
We do not consider Williams v. Richtman Printing, supra, as authority for a contrary result. In Williams the claimant sustained an injury to the left upper extremity. Later, he was released to work and sustained injury to the right upper extremity. The evidence demonstrated right upper extremity injuries occurred because the claimant "overused" the right upper extremity to compensate for reduced function in the left upper extremity. In that case we concluded, as a matter of law, that the effects of the left upper extremity injury had come to rest and there was not a sufficient physical or medical connection between the left upper extremity injury and the right upper extremity injury.
Whatever the merits of the Williams decision, we do no find it dispositive of the circumstances presented here. Unlike the situation in Williams, the facts in this case show an immediate physical connection between the injury to the claimant's right upper extremity and the subsequent injury to the left upper extremity. The right upper extremity injury caused pain, which in turn caused the claimant to over exert the left shoulder. Hence, the record shows a sufficient causal connection between the 2000 injury and the 2001 injury to support the ALJ's conclusion.
IT IS THEREFORE ORDERED that the ALJ's order dated April 24, 2002, 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. 2002. 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 _________November 7, 2002 ______________to the following parties:
Jess L. Marin, 11102 Chase Way, Westminster, CO 80020
Connie Booth, Compass Logistics, Inc., 10251 E. 51st Ave., #A, Denver, CO 80239
Michelle Montoya, ESIS, P. O. Box 2941, Greenwood Village, CO 80150-0141
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
David J. Dworkin, Esq. and Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Hurtado