FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which determined the claimant failed to prove a compensable injury and therefore denied and dismissed the claim for workers' compensation benefits. We affirm
The ALJ's findings of fact may be summarized as follows. The claimant was diagnosed with diabetes when she was 16 years old Since that time, the claimant has had a long history of left lower extremity problems, including prior bouts with osteomyelitis, swelling, and infection
On December 12, 1996, the claimant was on a field trip in her employment as a teacher. She injured her left ankle when she slipped while stepping off a school bus. Later the same day, the claimant slipped and fell again. As a result of the injuries, the claimant felt some discomfort in her left leg but the pain was mainly in her shoulder. On December 24, 1996 the claimant sought treatment from Dr. Conklin, who had been treating the claimant for a pre-existing ulcer on the outside of the ball of her left foot Following Dr. Conklin's examination, the claimant was hospitalized and diagnosed with a staff infection. Thereafter, the claimant suffered a number of problems with her left lower extremity. In June 1997 the claimant underwent an amputation of her left leg below the knee. The claimant subsequently sought temporary disability, permanent disability, and medical benefits on account of the amputation
Crediting the opinions of Dr. Jacobs, the ALJ found that the amputation was the proximate result of the claimant's pre-existing diabetes and that the December 12 accident did not cause, accelerate, aggravate, or contribute the problems which necessitated the amputation. Therefore, the ALJ denied and dismissed the claim
On review, the claimant contends that it is undisputed she suffered an ankle injury on December 12, 1996. Therefore, she contends the record compelled the ALJ to find a compensable injury. The claimant also contends that the amputation has resulted in 28 percent whole person impairment according to the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). Relying on Egan v Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998), the claimant argues that the "cause" of this permanent medical impairment is a medical issue for determination by a Division-sponsored independent medical examination (IME) physician, not the ALJ. Because neither party has requested a Division-sponsored IME, the claimant contends the ALJ lacked jurisdiction to find that the December 12 injury did not contribute to her permanent impairment from the amputation. We disagree
The Workers' Compensation Act creates a distinction between the terms "accident" and "injury." The term "accident" refers to an "unexpected, unusual or undesigned occurrence." § 8-40-201(1), C.R.S. 1999. In contrast, an "injury" refers to the physical trauma caused by the accident. In other words, "accident" is the cause and "injury" is the result. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967)
No benefits flow to the victim of an industrial accident unless the accident results in a compensable "injury." Furthermore, it is well established that it is the claimant's initial burden to prove a compensable injury. City of Boulder v Payne, supra; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). To sustain her burden of proof the claimant was required to establish that the condition for which she sought benefits was proximately caused by an "injury" arising out of and in the course of employment. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Singleton v. Kenya Corporation, 961 P.2d 571 (Colo.App. 1998); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986)
As argued by the claimant, a compensable injury may be the result of a pre-existing condition which is aggravated by an industrial accident. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Nevertheless, the determination of whether the claimant's condition is due to the natural progression of the pre-existing condition or an industrial accident is one of fact for resolution by the ALJ. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999); F.R Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We are bound by the ALJ's factual determinations if they are supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 1999; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997)
Here, at the commencement of the hearing, the claimant's counsel stated that the issue was "to what extent the fall and twisted ankle" from the December 12 incident are "a contributing factor" to the lower extremity amputation. (Tr. p. 4). The claimant's counsel also stated that the issue of permanent partial disability was endorsed for adjudication. (Tr. p. 4). Thus, the issues resolved by the ALJ were explicitly endorsed by the claimant
The ALJ found, and it is undisputed that the claimant was the victim of two industrial accidents on December 12, 1996. The first occurred when she fell off the step of a school bus. Later she slipped on stairs in the school arena and fell. However, the claimant did not seek benefits for any injury to her ankle or shoulder. Rather, the claimant sought an award of compensation for lower extremity problems that culminated in the amputation of her left leg below the knee. Thus, to prove she suffered a compensable injury to her lower extremity and recover workers' compensation benefits for the amputation and accompanying disability, the claimant was required to establish a causal connection between the lower extremity problems and the December 12 incident. In the absence of a finding of a compensable injury, there is no "causation" issue for the IME physician to resolve
The ALJ found that the claimant failed to sustain her burden to prove that the December 12 accident involved a trauma to the claimant's left ankle sufficient to cause, accelerate, aggravate, or contribute to the progression of her disability from the pre-existing diabetes. The claimant's arguments notwithstanding, there is substantial, albeit conflicting evidence in the record to support the ALJ's determination. Therefore, the ALJ's finding must be upheld on review
The record contains substantial medical evidence that the claimant suffered extensive complications from the diabetes which pre-dated the industrial accident. Furthermore, there is evidence the claimant was experiencing lower extremity pain and wearing a leg brace at the time of the accident. (Tr. pp. 26) Specifically, the claimant suffered a "charcot" injury to her left foot in March 1996. (Tr. p. 28, 29). Furthermore, Dr. Jacobs opined that the claimant suffered "no significant injury" on December 12, 1996, that could have precipitated the next six months of required treatment. (Tr. p. 108). Rather, he opined there was only a temporal relationship between the December 12 fall and the claimant's subsequent lower extremity problems. (Tr p. 115). Instead, he opined that the amputation of the claimant's left lower leg was due to staph septicemia which entered through a breast or the foot ulcer. (Tr. p. 105). He also opined that the infection pre-existed the December 12 incident and that radiograph studies on December 20, 1996, showed no change in the claimant's ankle due to the December 12 fall. (Tr. pp. 106, 110) Admittedly, the claimant presented evidence that other treating physicians found a causal connection between the December 12 incident and the amputation. However, the ALJ was not required to afford any special weight to those opinions, and the weight of the evidence is not determined by the number of witness each party presents. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961). Therefore, we reject the claimant's contention that the medical record compels a contrary result
The ALJ's findings support the conclusion that the claimant failed to prove the requisite causal connection between the industrial accident and the medical conditions for which she sought workers' compensation benefits. Therefore, the ALJ did not err in denying the claim
IT IS THEREFORE ORDERED that the ALJ's order dated January 14, 1999, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Bill Whitacre
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. 1999 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 April 13, 2000 to the following parties:
Gail Lossie, 3133 E. Long Circle South, Littleton, CO 80122
Jefferson County Public Schools, 1829 Denver West Dr., Bldg. 27, Golden, CO 80401-3120
Jefferson County Public Schools, Attn: Carrie Higgerson, Risk Management Department, P. O. Box 4001, Golden, CO 80401-0001
Cameron W. Tyler, Esq., 2969 Baseline Rd., 2nd floor, Boulder, CO 80303 (For Claimant)
Kathryn Kaeble Todd, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy