In the Matter of Claim of Cox v. Allegis/Aerotek, W. C. No. 4-642-468 (CO 4/5/2006)

• Decision Date: 05 April 2006
• Docket Number: W. C. No. 4-642-468.,W. C. No. 4-642-607.
• Parties: IN THE MATTER OF THE CLAIM OF THOMAS COX, Claimant, v. ALLEGIS/AEROTEK, ADOLPH COORS/COORS DISTRIBUTING COMPANY, Employer, and SPECIALTY RISK SERVICES, ZURICH AMERICAN INSURANCE COMPANY, Insurer, Respondents.
• Court: Colorado Supreme Court

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IN THE MATTER OF THE CLAIM OF THOMAS COX, Claimant, v. ALLEGIS/AEROTEK, ADOLPH COORS/COORS DISTRIBUTING COMPANY, Employer, and SPECIALTY RISK SERVICES, ZURICH AMERICAN INSURANCE COMPANY, Insurer, Respondents.

W. C. No. 4-642-468.

W. C. No. 4-642-607.

Industrial Claim Appeals Office.

April 5, 2006.

FINAL ORDER

The Aerotek respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated October 17, 2005 that ordered them to pay temporary total disability benefits and medical benefits. We dismiss the petition to review insofar as it seeks review of the order to pay medical benefits and we otherwise affirm.

The claimant sought a hearing on the issues of compensability, medical benefits, temporary total disability benefits, average weekly wage, and penalties. Following the hearing the ALJ entered factual findings that may be summarized as follows. On January 17, 2005 the claimant accepted employment with Aerotek, a temporary employment agency, which assigned him to deliver products for Coors Distributing Company (Coors). On January 27, 2005 he sustained a compensable injury to his low back, which occurred while he was lifting a keg of beer. He reported the injury to Keith Johnson, a supervisor employed by Coors. On January 31, 2005, he accepted employment with Coors and, additionally, during January and February 2005 he maintained concurrent employment driving a shuttle van for Colorado Mountain Express (CME), transporting passengers to and from the airport. On February 11, 2005 the claimant was working for Coors and felt additional pain and symptoms when lifting a keg of beer. On February 12, 2005 the claimant experienced considerable back pain, and during his employment with CME that day he requested that passengers handle their own luggage. He sought medical treatment at the emergency room and was diagnosed with acute lumbar strain with left sciatica, and medications were prescribed. Physical restrictions were imposed, both by the physician who attended him in the emergency room and by Larry George, M.D., to whom he was referred. CME could not accommodate the claimant's physical restrictions; however, on March 31, 2005 Dr. George released the claimant to return to modified work at Coors. He attempted to do so on April 6, 2005, but believed the job duties assigned exceeded his restrictions. He did not appear for work after April 6, nor did he respond to several telephone calls from Coors inquiring about his intentions concerning his job. The claimant's employment was terminated and the ALJ concluded that the claimant was responsible for the wage loss after April 7, 2005.

Based upon her findings the ALJ concluded that the claimant sustained a compensable low back injury on January 27, 2005, but that the incident occurring on February 11, 2005 was not a separate compensable injury. The ALJ ordered Aerotek and its insurer to pay temporary disability benefits and medical benefits pursuant to the Act.

On appeal the respondents argue that the ALJ abused her discretion in failing to find that the claimant injured his back on February 11, 2005, and that, in any event, she erred in ordering them to pay benefits prior to the date the claimant reported the injury to Aerotek.

I.

We disagree with the Aerotek respondents' argument that the record compels the conclusion that the claimant sustained a compensable injury on February 11th. The law in this regard is well established. A "compensable" industrial accident is one which results in an injury requiring medical treatment or causing disability. §8-41-301(1)(c), C.R.S. 2005. The existence of a pre-existing medical condition does not preclude the claimant from suffering a new compensable injury, if an industrial aggravation is the proximate cause of the disability or need for treatment. H & H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo. App. 1988).

It is also true that pain is a typical symptom from the aggravation of a pre-existing condition. And the claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment-related activities and not the underlying pre-existing condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). In contrast, the claimant suffers a "worsening" of a pre-existing condition if the change is the natural and proximate consequence of a prior industrial injury, without any contribution from a separate, intervening causative factor. See Larson's Workers' Compensation Law, §131.03(1)(b) (2001).

The issue of whether the claimant's condition is the natural and proximate progression of the original industrial injury or a new injury is one of fact for resolution by the ALJ based upon the evidentiary record. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). The ALJ's findings must be upheld if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Where the evidence is subject to conflicting inferences it is the ALJ's sole prerogative to determine the inferences to be drawn. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo. App. 1985).

Contrary to the respondents' arguments, the ALJ's findings are supported by substantial evidence in the record, and those findings support the conclusion that the claimant did not suffer a separate compensable injury on February 11th. The ALJ found that the claimant sustained an injury to his back on January 27, 2005, and that after that injury he suffered significant pain and other symptoms, and experienced problems with numerous activities, including lifting, bending and sleeping. Although the pain increased after the February 11th incident, as we read the ALJ's order she did not find that it was anything but a worsening of the type of pain and other symptoms that the claimant had been experiencing continuously as a result of the January 27th injury. These findings are supported by the claimant's testimony regarding the back pain and other symptoms produced by the January 27th injury. Moreover, the inference that the injury of February 11th was merely...