United Continental v. ICAO

24CA0336 United Continental v ICAO 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0336
Industrial Claim Appeals Office of the State of Colorado
WC No. 5-198-416

United Continental Holdings, Inc.,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Tracy Slusher,

Respondents.

ORDER AFFIRMED

Division I
Opinion by JUDGE BERGER*
Lipinsky and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Pollart Miller LLC, Brad J. Miller, Greenwood Village, Colorado, for Petitioner

No appearance for Respondent Industrial Claim Appeals Office

Franklin D. Azar & Associates, P.C., Robert W. Turner, Aurora, Colorado, for
Respondent Tracy Slusher

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 United Continental Holdings, Inc. (employer) seeks review of a

final order of the Industrial Claim Appeals Office (Panel). In the

order, the Panel upheld the findings and conclusion of the

administrative law judge (ALJ) that claimant, Tracy Slusher,

suffered a compensable work-related injury requiring employer to

pay all reasonably necessary and related medical benefits and

temporary total disability benefits. We affirm the Panel’s order.

I. Relevant Facts and Procedural History

¶2 Slusher worked for employer as a customer service agent for

fourteen years. Although her job duties changed over time, at the

time of her claimed injury, she was charged with meeting aircraft at

the gate and assisting passengers as they disembarked. She was

required at times to put in place a mobile swing gate — also called a

mobile bridge adapter — that allowed the passengers to disembark

from the plane.

¶3 Slusher testified that, on September 26, 2021, she attempted

to move a heavy mobile bridge adapter but it got stuck. She pulled

on the bridge adapter in an attempt to dislodge it and felt a pop in

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her right shoulder. She felt pain but continued to work and

completed her shift.

¶4 During her ride home and after she arrived home, the pain in

Slusher’s shoulder worsened to the extent that she visited a

hospital emergency room that night. Her shoulder was x-rayed at

the hospital. She went to Panorama orthopedic clinic the next day

for treatment. The doctors at Panorama ordered a magnetic

resonance imaging (MRI) test. The x-rays and MRI test revealed an

accumulation of calcium in Slusher’s shoulder and a small tear in

her rotator cuff.

¶5 The doctors were concerned that the calcium deposits

indicated cancer, so they referred Slusher to an oncologist. After

the oncologist determined that the calcium deposits were not

cancerous, Slusher began treatment for her shoulder, which largely

consisted of physical therapy. Slusher’s treatment team initially

considered surgery, but later determined it was not indicated. At

the time of the workers’ compensation hearing, Slusher had not

returned to work because of the work restrictions that her doctors

had imposed.

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¶6 At Slusher’s request, Dr. Sander Orent conducted an

independent medical examination (IME) in January 2023.

concluded that Slusher had sustained an industrial injury. He also

opined that she was not at maximum medical improvement, had

ongoing symptoms, and required substantial work restrictions that

prevented her from performing her job duties.

¶7 At employer’s request, Dr. Lawrence Lesnak conducted a

second IME in June 2023. He concluded that, although there may

have been some type of “incident” on September 26, 2021, no

medical evidence supported a finding that Slusher sustained an

injury as a result of that incident. Dr. Lesnak noted that Slusher

had several pre-existing conditions and had not provided a full

medical history to her treating physicians or to him. For these

reasons, he concluded that further medical care, impairment rating

assessment, or any type of work restrictions were “completely not

applicable whatsoever.”

¶8 Slusher was the only witness who testified at the hearing. The

reports of the treating physicians, as well as those of the IME

physicians, were admitted into evidence. Through

3
cross-examination, employer vigorously questioned the existence

and extent of Slusher’s injuries because of her numerous pre-

existing medical conditions, at least some of which she had not

disclosed to the IME physicians.

¶9 Slusher admitted that, before September 26, 2021, she had

been diagnosed with calcific tendinitis and previously sought

treatment for a dull, aching pain in her right shoulder. She also

admitted that she had previously been diagnosed with Hashimoto’s

disease, fibromyalgia, and scleroderma. But she testified,

repeatedly and emphatically, that she had never before had the type

of pain that she experienced after the September 26, 2021, incident.

¶ 10 In a written order, the ALJ found that Slusher was injured on

the job on September 26, 2021. The ALJ acknowledged Slusher’s

pre-existing conditions, but found no persuasive or substantial

evidence that Slusher was unable to perform her job duties because

of these conditions before the date of the incident. The ALJ

specifically found that the September 26, 2021, incident aggravated

Slusher’s pre-existing condition and caused a new injury in the

form of a small rotator cuff tear.

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¶ 11 The ALJ addressed and rejected Dr. Lesnak’s opinion that

Slusher had not sustained an injury on September 26, 2021,

finding that the opinion was neither credible nor persuasive.

Instead, the ALJ relied on Dr. Orent’s opinion that Slusher had

sustained a work injury on September 26, 2021.

¶ 12 Based on all the evidence presented, the ALJ determined that

Slusher had proven by a preponderance of the evidence that she

suffered a compensable work-related injury to her right shoulder on

September 26, 2021. The ALJ ordered employer to pay all

authorized, reasonably necessary and related medical benefits, as

well as temporary total disability benefits, beginning on September

27, 2021, and applicable interest.

¶ 13 Employer appealed to the Panel. In a lengthy order, the Panel

affirmed the ALJ’s decision. The Panel concluded that substantial,

albeit conflicting, evidence supported the ALJ’s findings of fact and

further concluded that the Panel had no authority to overturn the

ALJ’s factual findings.

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II. Analysis

¶ 14 Employer contends that we should set aside the Panel’s order

because (1) the evidence does not support a determination that

Slusher sustained “any type of injury whatsoever” on September 26,

2021, and (2) the ALJ failed to address employer’s argument that,

even if Slusher was injured on that date, her current, ongoing

condition was not work-related. We reject these contentions.

A. Standard of Review and Legal Principles

¶ 15 Our review of the Panel’s order is narrow. See Metro Moving &

Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995). We

may set aside an order only on the following grounds:

[t]hat the findings of fact are not sufficient to
permit appellate review; that conflicts in the
evidence are not resolved in the record; that
the findings of fact are not supported by the
evidence; that the findings of fact do not
support the order; or that the award or denial
of benefits is not supported by applicable law.

§ 8-43-308, C.R.S. 2024.

¶ 16 We must accept the ALJ’s findings of fact if they are supported

by substantial evidence. Id. Substantial evidence is “that quantum

of probative evidence which a rational fact-finder would accept as

adequate to support a conclusion, without regard to the existence of
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conflicting evidence.” Metro Moving & Storage, 914 P.2d at

414. When applying this test, “we must view the evidence as a

whole and in the light most favorable to the prevailing

party.” Id. We defer to the ALJ’s credibility determinations and

resolution of conflicts in the evidence, including conflicts in the

medical evidence. Id. Causation is generally a question of fact for

the ALJ. Faulkner v. Indus. Claim Appeals Off., 12 P.3d 844, 846

(Colo. App. 2000).

¶ 17 Under the Workers’ Compensation Act of Colorado, an

employee is entitled to compensation for an “injury or death . . .

proximately caused by an injury or occupational disease arising out

of and in the course of the employee’s employment.” § 8-41-

301(1)(c), C.R.S. 2024. The “in the course of” requirement refers to

the time, place, and circumstances under which a work-related

injury occurs. Town of Kiowa v. Indus. Claim Appeals Off., 2024

COA 36, ¶ 13. Thus, an injury occurs in the course of employment

when it takes place within the time and place limits of the

employment relationship and during an activity connected with the

employee’s job-related functions. Id.

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¶ 18 “When a pre-existing condition is aggravated by an employee’s

work, the resulting disability is a compensable” work injury.

Subsequent Injury Fund v. Thompson, 793 P.2d 576, 579 (Colo.

1990); see also Seifried v. Indus. Comm’n, 736 P.2d 1262, 1263

(Colo. App. 1986) (“[I]f a disability were 95% attributable to a pre-

existing, but stable, condition and 5% attributable to an

occupational injury, the resulting disability is still compensable if

the injury has caused the dormant condition to become disabling.”).

B. Slusher’s Injury Was Work-Related

1. Pre-Existing Conditions

¶ 19 Employer argues that Slusher’s inability to work stemmed

from her previous diagnosis of calcific tendinitis and that she

repeatedly misrepresented her medical history to the IME

examiners and her own treating physicians.

¶ 20 The ALJ acknowledged Slusher’s pre-existing shoulder

condition — the calcific tendinitis for which she received anti-

inflammatory medication in 2019. However, the ALJ credited

Slusher’s testimony that, despite her diagnosis of calcific tendinitis,

she was able to perform her job duties for years before the work

injury at issue. Slusher testified that the pain in her shoulder after
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the incident was a “stabbing sharp pain” rather than the dull

achiness she experienced with the calcific tendinitis. In sum, the

ALJ found, with record support, that before September 26, 2021,

Slusher worked full time as a customer service agent, opening

aircraft doors and moving heavy bridges and bridge adapters,

without significant difficulty, despite her pre-existing medical

conditions. Based on this evidence, which the ALJ credited, the

ALJ found that the September 26, 2021, injury aggravated her pre-

existing condition and caused a new injury in the form of a small

rotator cuff tear.

¶ 21 Employer asserts that this finding is not supported by the

record because Slusher’s treating physician “made it clear” that her

pain was from the inflammation caused by the pre-existing

calcification, not from the small rotator cuff tear. To reach this

conclusion, employer points to medical records stating that

“inflammation from the calcification around the rotator cuff is the

problem” and her treating physician’s conclusion that Slusher was

“suffering from an unusual form of calcific tendinitis that made its

way into her bone.” The ALJ acknowledged those records, but

9
found, with record support, that other medical records indicated a

small tear of the rotator cuff. The ALJ further noted that Slusher’s

x-rays showed swelling immediately following the incident but that

it had nearly resolved by April of 2022, supporting the

determination that Slusher sustained an injury on September 26,

2021. See Metro Moving & Storage, 914 P.2d at 415 (we must “defer

to the ALJ’s . . . resolution of conflicts in the evidence, including the

medical evidence”).

¶ 22 In her order, the ALJ did not specifically address employer’s

assertions that Slusher misrepresented her medical history to the

treating providers and the IME physicians. However, in the order,

the ALJ thoroughly reviewed and summarized the medical records,

reports, and Slusher’s testimony, which contain information about

her pre-existing conditions. Moreover, the ALJ found that, other

than the diagnosis related to calcific tendinitis in her right

shoulder, Slusher’s medical records from before 2016 were not

relevant to whether Slusher was entitled to workers’ compensation

benefits for the injuries resulting from the September 26, 2021,

incident.

10
¶ 23 Employer vigorously asserts that Dr. Lesnak’s opinion was

based on a proper and accurate medical history and that Dr.

Orent’s report lacked credibility because of Slusher’s failure to

provide him with an accurate history.

¶ 24 But the ALJ found to the contrary. She found that Dr.

Lesnak’s report concentrated on records going back years showing

that Slusher had chronic health problems, which the ALJ did not

find relevant to the injury that occurred on September 26, 2021.

The ALJ specifically found that neither Dr. Lesnak’s report nor his

opinions were credible or persuasive. The ALJ, however, found that

Dr. Orent’s opinions were credible and persuasive.

¶ 25 Exercising her authority as the factfinder, the ALJ rejected the

testimony and evidence presented at the hearing inconsistent with

her findings in the order because that inconsistent testimony and

evidence was neither credible nor persuasive.

2. Potential Prior Injury

¶ 26 Employer also argues that Slusher had a prior injury to her

rotator cuff and reported chronic shoulder problems because of this

previous injury just six months before the September 26, 2021,

11
incident. We acknowledge that a medical record from Slusher’s

primary care physician dated March 2021 notes an “injury of right

shoulder” and “old work injury, not on work comp anymore.” But

when asked about this record at the hearing, Slusher testified that

she had seen her primary care physician for a routine physical in

March 2021, the notation was a mistake, and she had not

previously submitted a workers’ compensation claim. The ALJ

made a factual finding that any reference to an “old work injury”

was incorrect and not credible.

¶ 27 Similarly, employer asserts that Slusher reported a “prior

rotator cuff tear” when she sought treatment at the emergency

room. Based at least in part on Slusher’s testimony, the ALJ also

found this notation in the medical record to be a mistake and not

credible. We cannot second-guess these credibility determinations,

the ALJ’s assessment of the persuasive value of the evidence, or the

resolution of conflicting evidence. See Metro Moving & Storage, 914

P.2d at 414-15.

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C. Slusher’s Ongoing Condition Was Work-Related

¶ 28 Employer also argues that the ALJ erred as a matter of law

because she did not address its argument that, even if a

compensable injury occurred, the ongoing condition was not work-

related and an award of benefits was not appropriate. We disagree.

¶ 29 The ALJ’s order addresses whether Slusher’s ongoing

disability was due to the on-the-job injury as follows:

[P]ersuasive evidence shows [Slusher] was
disabled by the September 26, 2021 injury
because she could not use her upper right
extremity. . . . Later, . . . her authorized
treating physician . . . kept [Slusher] off of
work. [Slusher] credibly testified that with the
inflammation from the calcific tendinitis she
was able to lift her arm overhead for years
while working for employer opening aircraft
doors and moving the [mobile bridge adapter],
as well as loading bags and other tasks. She
could not perform all of these tasks after the
September 26, 2021 injury. It was the injury
to her rotator cuff and the aggravation of her
calcific tendinitis that caused her to be unable
to return to work for [e]mployer at her same
job duties.

¶ 30 The ALJ proceeded to address whether Slusher’s continuing

inability to perform the essential functions of her job was related to

the September 26, 2021, incident:

13
[Slusher] testified that she had not yet been
placed at maximum medical improvement . . . ,
and nothing in the records and evidence
submitted at the time of the hearing were
persuasive otherwise. Nor had [e]mployer
offered her any modified job duties. . . .
[Slusher] was unable to return to work
beginning on September 27, 2021 . . . and
continued to be unable to perform her job.

¶ 31 Employer asserts that the ALJ did not address whether

Slusher’s continuing inability to work was due to the on-the-job

injury, but employer does not explain why the above findings were

insufficient in that respect.

¶ 32 Rather, employer argues that Dr. Lesnak did not believe

Slusher had any disability that would entitle her to benefits.

Employer further asserts that Dr. Orent reviewed the treating

physician’s notes and determined that he had “released claimant to

full duty work on the third week of February 2022.” Once again,

these arguments are attacks on the sufficiency of the evidence

supporting the ALJ’s findings, which we have already rejected.

¶ 33 It makes no difference whether evidence in the record would

have supported a decision other than the one the ALJ reached. The

only question properly before us is whether sufficient evidence in

14
the record supported the findings and conclusions that the ALJ

reached.

¶ 34 For the reasons articulated above, we conclude, as did the

Panel, that sufficient evidence supported the ALJ’s factual findings.

III. Disposition

¶ 35 The Panel’s order is affirmed.

JUDGE LIPINSKY and JUDGE SULLIVAN concur.

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