Opinion
W.C. No. 4-538-294
March 31, 2003
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Jones (ALJ) which denied and dismissed his claim for workers' compensation benefits. We affirm.
Due to a non-industrial condition, the claimant underwent a laminectomy at the L2-S1 area of the spine on December 2, 1999. The claimant was released to return to work in January 2000 with a 30 pound lifting restriction.
The ALJ found the claimant suffered a temporary aggravation of his pre-existing back condition on February 8, 2000, when he attempted to lift a box. On February 9, 2000, the claimant was examined at Dr. Guerrero's office. The examining physician attributed the claimant's back pain to "scar irritation and pulling, which has resolved." The physician released the claimant from treatment but directed him to return if he had further pain. The claimant's pain symptoms subsequently increased and he sought additional treatment. An MRI was negative for a herniated disc.
In August 2000 Dr. Wieder diagnosed the claimant as suffering intractable right-sided L5 and S1 radiculopathy. On August 24, 2000, Dr. Wieder performed a repeat laminectomy. Dr. Wieder's operative report states that the surgery revealed an "extensive amount of scar tissue," which Dr. Wieder opined was responsible for the claimant's radiculopathy.
Relying on the opinions of Dr. Wieder, the ALJ found the August surgery was not necessitated by the February 8 industrial injury. Instead, the ALJ determined the claimant's subsequent radiculopathy was caused by the formation of scar tissue following the 1999 surgery. Therefore, the ALJ determined the claimant failed to prove his entitlement to temporary disability and medical benefits on account of the August surgery.
On review, the claimant contends there is "no evidence" to support the ALJ's conclusion that his low back pain was the result of scar tissue from the 1999 surgery. We disagree.
The ALJ recognized that a "compensable" industrial accident is one which results in an injury requiring medical treatment or causing disability. Section 8-41-301(1)(c), C.R.S. 2002. The existence of a pre-existing medical condition does not preclude the claimant from suffering a 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).
Pain is a typical symptom caused from the aggravation of a preexisting condition. Insofar as the pain triggers the claimant's need for medical treatment, the claimant has suffered a compensable injury. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). In other words, the claimant is entitled to medical benefits for the aggravation, so long as the pain is proximately caused by the industrial aggravation and is not simply a direct and natural consequence of the original injury. Parra v. Ideal Concrete, W.C. No. 4-179-455 (April 8, 1998); Witt v. James J. Keil Jr., W.C. No. 4-225-334 (April 7, 1998).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ and, therefore, the ALJ's findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002 ; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of conflicting evidence or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Further, 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, we are bound by plausible inferences the ALJ drew from the evidence. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). This is true because the ALJ is considered to possess expert knowledge which renders her competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Here, the ALJ explicitly recognized that Dr. Guerrero's office directed the claimant to return for further treatment if his condition worsened, and the claimant's condition did worsen. However, we reject the claimant's contention that this circumstantial evidence compelled the ALJ to find a causal connection between the industrial accident and the subsequent need for surgery. To the contrary, the ALJ's finding that the claimant's increased pain symptoms were due to scar tissue which developed around the site of the 1999 incision is a plausible inference from the February 9 medical report by Dr. Guerrero's office, the MRI testing, and Dr. Wieder's August 24, 2000 operative report. The inference is buttressed by evidence the claimant's symptoms were initially not "bad" after the February 8 incident but progressively worsened. ( See Dr. Wieder March 6, 2000).
Moreover the ALJ's findings of fact support the conclusion the claimant failed to sustain his burden to prove the requisite connection between the industrial accident and the compensation benefits he sought. Therefore, the claimant has failed to establish grounds which afford us a basis to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated October 18, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2002. 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 March 31, 2003 to the following parties:
George F. Youderian, Jr., 8475 S. Pebble Creek Way, #103, Highlands Ranch, CO 80126
Echosphere, 90 Inverness Circle East, Englewood, CO 80112
Echostar, 5701 S. Santa Fe Dr., Littleton, CO 80120
George Fairbanks, Employers' Insurance Company of Wausau, 9457 S. University Blvd., #313, Highlands Ranch, CO 80126
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
Ligita Bardulis, Esq., 1600 Pennsylvania St., Denver, CO 80203
BY: A. Hurtado