Nichols v. ICAO

• Court: Colorado Court of Appeals
• Decided: January 30, 2025
• Docket: 24CA0754
• Status: Unpublished

Opinion

24CA0754 Nichols v ICAO 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0754 Industrial Claim Appeals Office of the State of Colorado WC No. 5-228-938-002

Janell Nichols,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and State of Colorado Department of Public Health & Environment,

Respondents.

ORDER AFFIRMED

Division III Opinion by JUDGE BERGER* Dunn and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025

Boesen Law LLC, Bradley Unkeless, Greenwood Village, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Philip J. Weiser, Attorney General, Tina R. Oestreich, Assistant Attorney General, Denver, Colorado, for Respondent Colorado Department of Public Health & Environment

*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 In this workers’ compensation action, Janell Nichols

challenges a final order of the Industrial Claim Appeals Office

(Panel) denying her claim. We affirm.

I. Relevant Facts and Procedural History

¶2 The following facts are undisputed. Nichols, a trained

epidemiologist and infection preventionist, worked for the Colorado

Department of Public Health and Environment (CDPHE) as a

Prevention Unit Manager. She worked mainly at a computer,

performing data and research analysis, and drafting documents.

¶3 On May 12, 2014, Nichols reported a work-related injury to

CDPHE, pursuant to the Colorado Workers’ Compensation Act (Act),

§§ 8-40-101 to -47-209, C.R.S. 2024. Specifically, Nichols

complained of pain, numbness, and tingling in her wrists and

fingers. Nichols visited two physicians in 2014 and received varying

diagnoses. Dr. John Aschberger diagnosed Nichols with “very mild”

carpal tunnel syndrome (CTS) in the right wrist only. Dr. Edmund

Rowland diagnosed her with “probable carpal tunnel syndrome on

both sides.” Neither physician opined as to the cause of Nichols’s

symptoms. Nichols concluded her medical treatment that year,

without filing a claim for compensation under the Act.

1 ¶4 Approximately eight years later, on October 24, 2022, Nichols

again reported an injury to CDPHE. In that report, Nichols

complained of CTS in “both wrists,” with increased pain and

numbness in the left. Multiple physicians evaluated Nichols. She

received diagnoses of bilateral CTS, median neuropathy, lateral

epicondylitis on both sides, and left cubital tunnel syndrome.

Nichols made a formal request for compensation under the Act,

which CDPHE contested, and the matter went to a hearing before

an administrative law judge (ALJ).

A. The ALJ’s Order

¶5 The ALJ reviewed evidence related to (1) Nichols’s claim that,

beginning in 2022, her job aggravated her pre-existing CTS and

therefore entitled her to compensation under the Act; and

(2) CDPHE’s affirmative defense alleging that Nichols failed to timely

file her claim under the limitations period that section 8-43-103(2),

C.R.S. 2024 prescribes. Following the hearing, the ALJ issued an

order denying Nichols’s claim and also denying CDPHE’s affirmative

defense. The ALJ found by a preponderance of the evidence that

Nichols timely filed her claim but failed to meet her burden of

demonstrating that her job caused her symptoms.

2 ¶6 In ruling on CDHPE’s affirmative defense, the ALJ noted that

the two-year limitation period begins “when the claimant, as a

reasonable [person], should recognize the nature, seriousness[,] and

probable compensable character of [the] injury.” City of Boulder v.

Payne, 426 P.2d 194, 197 (Colo. 1967); see § 8-43-103(2), C.R.S.

2024. After recapping Nichols’s testimony regarding her experience

of her symptoms, the ALJ found that Nichols reasonably recognized

the foregoing when she suffered a flare-up of her symptoms in

October 2022 and could no longer alleviate the pain.

¶7 However, in ruling on Nichols’s claim for compensation, the

ALJ noted that only one provider, Dr. Carlos Cebrian, had

performed “a formal causation assessment” pursuant to the

Division of Workers’ Compensation’s (Division) causation guidelines

(promulgated at Dep’t of Lab. & Emp. Rule 17-5(D)(3), 7 Code Colo.

Regs. 1101-3:17-5(D)(3)). Dr. Cebrian opined that, in all medical

probability, Nichols’s work did not cause her symptoms. The ALJ

found Dr. Cebrian’s formal causation analysis “persuasive” and

credited it over Nichols’s own testimony regarding causation.

Nichols provided no evidence as to causation beyond her own

testimony.

3 B. The Panel’s Review

¶8 Nichols filed a petition seeking the Panel’s review. In that

petition, Nichols argued the Panel should correct or set aside the

ALJ’s order to the extent it denied Nichols relief because, among

other things, certain findings of fact compelled a disposition in her

favor. The Panel disagreed and affirmed the ALJ’s order.

II. Analysis

A. Standard of Review

¶9 Under section 8-43-308, C.R.S. 2024, we may not disturb

factual findings “supported by substantial evidence” and may only

set aside the Panel’s decision if (1) the findings of fact are not

sufficient to permit appellate review; (2) conflicts in the evidence are

not resolved in the record; (3) the factual findings do not support

the order; or (4) the award or denial of benefits is not supported by

applicable law.

¶ 10 Substantial evidence is “probative, credible, and competent, of

a character which would warrant a reasonable belief in the

existence of facts supporting a particular finding, without regard to

the existence of contradictory testimony or contrary inferences.”

Rathburn v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).

4 Assessing the weight, credibility, and sufficiency of such evidence is

the ALJ’s exclusive domain, and findings based on conflicting

evidence are conclusive on review. Delta Drywall v. Indus. Claim

Appeals Off., 868 P.2d 1155, 1157 (Colo. App. 1993); Rockwell Int’l

v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).

B. Proving a Compensable Cumulative Trauma Condition

¶ 11 Nichols bore the burden of proving, by a preponderance of the

evidence, that her employment proximately caused her symptoms.

Life Care Ctrs. of Am. v. Indus. Claim Appeals Off., 2024 COA 47,

¶ 16; see § 8-40-201(14), C.R.S. 2024. The ALJ determines

causation “based on the totality of medical and non-medical

evidence.” Dep’t of Lab. & Emp. Rule 17-5(D)(3), 7 Code Colo. Regs.

1101-3:17-5(D)(3).

¶ 12 To guide medical experts’ evaluations of the foregoing

causation requirement in cases involving cumulative trauma

conditions, such as CTS, the Division promulgated guidelines,

entitled “Medical Causation Assessment for Cumulative Trauma

Conditions” (Causation Assessment Guidelines). Id. The Causation

Assessment Guidelines identify specific work tasks (Risk Factors),

such as typing and mousing, and the threshold amount of exposure

5 to each task which would render it medically probable that an

employee’s job caused her cumulative trauma condition. Id.

¶ 13 The Causation Assessment Guidelines direct clinicians to

determine whether the claimant’s job involves Risk Factors “in

sufficient degree and duration” to cause a condition or “aggravate” a

pre-existing condition. Id. Such determination typically involves

interviewing the claimant and/or performing a “formal job site

evaluation.” Id.

C. Application

¶ 14 On appeal, Nichols argues that the Causation Assessment

Guidelines expressly allow compensation when a claimant’s work

“combines with, accelerates, or aggravates a pre-existing

symptomatic condition.” She then reasons that, because the ALJ

found that her work “exacerbated” her pre-existing CTS (as

documented in paragraphs 9 and 29 of his factual findings), he

necessarily found that Nichols was entitled to compensation.

“Having found compensability,” Nichols contends, “there would be

no reason to assess” medical causation evidence based on the Risk

Factors, and thus the ALJ erred in considering Dr. Cebrian’s

causation opinion predicated on the Risk Factors. The ICAO

6 counters that the ALJ never found compensability and the Panel

was simply summarizing Nichols’s testimony. We need not resolve

this dispute because, even assuming the ALJ made such a finding,

the record supports the Panel’s determination.

1. The Causation Assessment Guidelines

¶ 15 Nichols is correct that the Causation Assessment Guidelines

allow compensation where a claimant’s work “combines with,

accelerates, or aggravates a pre-existing symptomatic condition.”

Dep’t of Lab. & Emp. Rule 17-5(D)(3), 7 Code Colo. Regs. 1101-

3:17-5(D)(3). However, the Causation Assessment Guidelines make

clear that such a finding must be predicated on a medical causation

analysis considering the Risk Factors.

¶ 16 We interpret administrative regulations, like the Causation

Assessment Guidelines, de novo, and apply the same rules of

construction we would apply in interpreting a statute. HCA-

HealthONE, LLC v. Colo. Dep’t of Lab. and Emp., 2020 COA 52, ¶ 29.

Thus, our primary task is to give effect to the Division’s intent. Id.

We cannot add or subtract words from a regulation, and we must

read words and phrases in context. People v. Howell, 2024 CO 42,

¶ 8. We give consistent, harmonious, and sensible effect to all the

7 regulation’s parts, rendering no words or phrases superfluous.

People v. Tafoya, 2019 CO 13, ¶ 17.

¶ 17 The introductory paragraph of the regulations describes

clinicians’ fundamental obligation to determine whether a “work-

related exposure or injury” necessitates medical treatment and

identifies four scenarios under which the Division covers such

treatment, including when a claimant’s work “combines with,

accelerates, or aggravates a pre-existing symptomatic condition.”

Dep’t of Lab. & Emp. Rule 17-5(D)(3), 7 Code Colo. Regs. 1101-

3:17-5(D)(3). The Causation Assessment Guidelines then expressly

set forth “[t]he steps in a medical causation assessment for

cumulative trauma conditions[.]” Id.

¶ 18 Reading these provisions together, and noting they all fall

within a section labeled “Medical Causation Assessment,” makes

clear that the scenarios in which treatment is covered are not

somehow divorced from the prescribed causation analysis; rather,

they are possible conclusions to be derived from such analysis. See

Allely v. City of Evans, 124 P.3d 911, 913 (Colo. App. 2005) (in

construing a regulation, we may consider headings the

promulgating body expressly included).

8 ¶ 19 This point finds further support in the express language of the

prescribed steps, including Step 4, which discusses how the Risk

Factors apply in the context of evaluating aggravation of a pre-

existing condition:

Complete the required match between the risk factors identified in Section D.3.d Risk Factors Definitions Table and the established diagnosis using the system described in Section D.3.b. Remember that preexisting conditions may be aggravated by, or contribute to, exposures lower than those listed on the table. Those preexisting conditions must be determined by the authorized treating physician based on physiologic plausibility.

Dep’t of Lab. & Emp. Rule 17-5(D)(3), 7 Code Colo. Regs. 1101-

3:17-5(D)(3). Read harmoniously together so as to give effect to all

provisions, the Causation Assessment Guidelines establish that an

aggravated pre-existing condition is compensable where a Risk

Factors analysis shows that work conditions more likely than not

caused the aggravation.

¶ 20 Nichols does not argue that the ALJ’s finding that her work

exacerbated her symptoms was premised on evidence invoking the

Risk Factors. (Indeed, she argues this finding allowed the ALJ to

disregard the Risk Factors entirely.) As such, and in light of the

9 foregoing discussion, that finding does not compel a determination

of compensability under the Causation Assessment Guidelines.

2. The ALJ’s Finding that Work Exacerbated Nichols’s Symptoms

¶ 21 To the extent Nichols argues the ALJ’s finding that work

exacerbated her symptoms nonetheless undermines the ALJ’s

denial of her claim, we reject her argument.

¶ 22 We interpret an ALJ’s order de novo, applying principles of

contract interpretation. See Blecker v. Kofoed, 672 P.2d 526, 528

(Colo. 1983) (applying contract interpretation principles to a court

order); Everett v. Dickinson & Co., 929 P.2d 10, 13 (Colo. App. 1996)

(courts interpret contracts de novo). Thus, in evaluating the

intended meaning of a provision in a court order, we construe it in

the context of the entire instrument, in accordance with ordinary

grammatical conventions, bearing in mind the nature of the subject

matter. Sch. Dist. No. 1 v. Denver Classroom Tchrs. Ass’n, 2019 CO

5, ¶¶ 12-13; Chandler-McPhail v. Duffey, 194 P.3d 434, 441 (Colo.

App. 2008). We reconcile any apparently conflicting provisions;

only where it is impossible to do so will we find the order

ambiguous and determine its meaning as an issue of fact. Sch.

10 Dist. No. 1, 2019 CO 5 at ¶ 14; Ryan v. Fitzpatrick Drilling Co., 342

P.2d 1040, 1043 (Colo. 1959).

¶ 23 Here, the subject finding is easily reconciled with the

disposition when properly viewed in context and considering that

the ALJ’s order adjudicated not only Nichols’s claim for

compensation but also CDPHE’s statute of limitations affirmative

defense. Nichols bore the burden of proof as to her claim, and

CDPHE bore the burden of proof as to its affirmative defense. See

Welsch v. Smith, 113 P.3d 1284, 1289 (Colo. App. 2005). The ALJ

found that neither party met their burden. The finding that

Nichols’s work “exacerbated [her] symptoms” relates to the ALJ’s

adjudication of the defense, which turned on whether the two-year

filing period began running in 2014 or 2022.

¶ 24 The two-year limitation period begins “when the claimant, as a

reasonable [person], should recognize the nature, seriousness[,] and

probable compensable character of [the] injury.” Payne, 426 P.2d

at 197; see § 8-43-103(2). As the ALJ noted, “[f]or a claimant to

appreciate an injury’s seriousness and probable compensable

nature, the injury must be to some extent disabling.” City of Colo.

Springs v. Indus. Claim Appeals Off., 89 P.3d 504, 506 (Colo. App.

11 2004) (internal quotations omitted). In ruling on the statute of

limitations issue, the ALJ found that Nichols did not recognize the

foregoing until “she suffered a flare-up of symptoms in October

2022” and “was no longer able to alleviate her pain.”

¶ 25 The ALJ’s findings of fact in paragraphs 9 and 29, where he

notes that Nichols’s work exacerbated her symptoms, provide

factual context and support for this determination. They set forth

the chronology of Nichols’s experience, as she explained it at the

hearing and reported it to clinicians. In fact, paragraph 29 prefaces

its reiteration of that chronology by stating CDPHE “has failed to

prove it is more probably true than not that [Nichols’s] claim is

barred by the statute of limitations[.]” According to common writing

conventions, all subsequent findings in the paragraph are

reasonably construed as intended to support that topic sentence.

This includes the finding (mirrored in paragraph 9) that “[t]he

combination of increased hours at her computer and changes to

workstation ergonomics exacerbated [Nichols’s] symptoms” and

prompted her to file a claim in 2022.

¶ 26 Paragraph 30 reiterates the point, referencing paragraph 29

and noting: “The preceding chronology reflects that [Nichols] has

12 experienced upper extremity symptoms sporadically since at least

2014[;] [h]owever, [her] present claim is predicated on a request for

compensation from October 24, 2022.” The ALJ then finds — based

on that timeline, as Nichols related it — that Nichols “did not

recognize the nature, seriousness, and probable compensable

character of her injury until October 2022[,]” when she could no

longer successfully “alleviate” her symptoms.

¶ 27 Both paragraphs 9 and 29 support the ALJ’s finding that

Nichols reasonably waited until 2022 to file a claim. Neither

purports to address medical causation nor references any

clinicians’ opinions regarding the same. Construing these

paragraphs as relating to the ALJ’s disposition of the affirmative

defense properly reconciles (1) any apparent conflict between the

finding that Nichols’s increased hours and workstation ergonomics

“exacerbated” her symptoms and (2) the ALJ’s later determination

that, “despite Claimant’s testimony,” she failed to prove legal

causation as to her claim by a preponderance of the evidence.

III. Disposition

¶ 28 The Panel’s order is affirmed.

JUDGE DUNN and JUDGE TOW concur.