In re Cortez, W.C. No

This case is not covered by Casetext's citator
Industrial Claim Appeals OfficeNov 23, 2005
W.C. No. 4-544-111. (Colo. Ind. App. Nov. 23, 2005)

W.C. No. 4-544-111.

November 23, 2005.


FINAL ORDER

The claimant seeks review of an order dated July 8, 2005 of Administrative Law Judge Stuber (ALJ) that denied and dismissed the claims for death benefits for failing to establish a sufficient nexus between the decedent's injury and his employment. We affirm.

The ALJ's pertinent findings of fact are as follows. The decedent drove a trash-hauling truck since 1998. The decedent worked with a loader who stood on the rear of the truck and jumped off at every stop to throw trash into the truck. In June 2002 the decedent and the loader trained a new driver, "Junior." On June 18, 2002, Junior drove the truck while the decedent road on the back of the truck with the loader. The decedent had complained to his spouse that he was tried and his legs were sore but made no complaint of chest pain.

On June 19, 2002 the decedent and the loader did not have to train Junior and were happy because they were by themselves that day. The decedent while walking to the back of the truck stopped, looked at the loader, grabbed his knees, and collapsed to the ground. Paramedics were called and he was pronounced dead.

The physician who performed the autopsy concluded that the decedent died of aortic valvular disease (calcific aortic stenosis) and thickened heart walls. The respondents arranged for a medical review by cardiologist, Dr. Vigoda who concluded that the decedent died of a cardiac arrhythmia secondary to calcific aortic valve stenosis.

Dr. Greenberg, a cardiologist, performed a medical record review for the claimant. Dr. Greenberg agreed that the decedent suffered a fatal cardiac arrhythmia and added that decedent's death was related to exertion because such exertion is usually a "common cause" of symptoms related to aortic valve obstruction. Dr. Greenberg noted that the decedent's structural abnormality in his heart would cause sudden death at any time, but it was more likely to occur with extreme exertion. Dr. Vigoda was of the opinion that the decedent's death was unrelated to exertion because there was no significant increase in physical or emotional stress.

Based on these findings, the ALJ determined that the decedent's death occurred in the "course" of his employment, but it did not "arise out of" his employment. The decedent's cardiac arrhythmia happened to occur while he was at work, but the record evidence does not establish a sufficient causal nexus to the employment. The ALJ found that although it is "possible" that exertion at work caused the arrhythmia, it is not probable. The more likely explanation is that the arrhythmia was caused by the fibrosis and the alteration of the polarity in the heart tissue. The ALJ concluded that the record evidence indicates the sudden death occurred due to the culmination of a disease process that arose from his congenital valve defect and that was not aggravated by his employment.

A compensable injury is one which arises out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2005. The "arising out of" test is one of causation. It requires that the injury have its origin in an employee's work-related functions, and be sufficiently related thereto so as to be considered part of the employee's service to the employer. In this regard, there is no presumption that injuries which occur in the course of a worker's employment arise out of the employment. Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968); see also Industrial Commission v. London Lancashire Indemnity Co., 135 Colo. 372, 311 P.2d 705 (1957). Rather, it is the claimant's burden to prove by a preponderance of the evidence that there is a direct causal relationship between the employment and the injuries. Section 8-43-201, C.R.S. 2005; Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989).

There is no requirement that a claimant present medical evidence to prove the cause of an injury. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). However, to the extent expert medical testimony is presented, it is the ALJ's sole prerogative to assess its weight and sufficiency. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Insofar as the medical testimony is inconsistent or subject to conflicting interpretation, we are bound by the ALJ's resolution of those inconsistencies and the plausible inferences the ALJ drew from the conflicts. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Indeed, the ALJ is considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).

The determination of whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). We must uphold the ALJ's determinations in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005.

The ALJ's order reflects his consideration of the applicable legal standard. Furthermore, we perceive no basis for interfering with the ALJ's determination that the death occurred in the "course" of his employment but it did not "arise out of" decedent's employment.

The testimony of the loader was to the effect that the decedent's work on the day of his death was much lighter, easier and more enjoyable than it had been the previous three days (Tr. p. 34). Further, to the extent that there was a conflict between the opinions of Dr. Vigoda, and Dr. Greenberg the ALJ resolved it by crediting the testimony of Dr. Vigoda. See Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ's credibility determinations adequately inform reviewing court how conflicts in the evidence were resolved). Consequently, Dr. Greenberg's suggestion of a work-related cause for the death does not permit us to disturb the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion).

Dr. Vigoda stated that the decedent happened to die while he was working, but he could just as easily have died in bed or while doing some task not involved with work. His job did not cause his death. (Exhibit C). It follows that there is substantial evidence in Dr. Vigoda's reports to support the ALJ's determination that the claimant failed to establish a work-related explanation for the death. These circumstances do not compel a determination that there is a causal connection between the employment and the arrhythmia.

We have reviewed the claimant's additional arguments and they do not alter our conclusions. The claimant's reliance on Hermann v. Wackenhut Corporation, W.C. 4-272-512 (April 9, 1997) is misplaced. Hermann was decided under the unusual exertion rule found in § 8-41-302 C.R.S. 2005, which applies to heart attacks. However, in this case both cardiologists opined that the claimant did not suffer a heart attack.

IT IS THEREFORE ORDERED that the ALJ's order dated July 8, 2005, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL _____________________ Tom Schrant _____________________ Robert M. Socolofsky Raquell Cortez, Desirae Cortez, D'Anthony Cortez, and Janie Cortez, Colorado Springs, CO, Colorado Springs Disposal d/b/a Bestway Disposal, Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail Pattie J. Ragland, Esq., Colorado Springs, CO, (For Claimant).

Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).