Opinion
W.C. No. 4-326-355.
February 14, 2005.
FINAL ORDER
Respondents Merritt Equipment Company (Merritt) and its insurer Fireman's Fund Insurance Company (collectively Merritt respondents), seek review of an order of Administrative Law Judge Jones (ALJ) holding them liable for medical and temporary total disability benefits. The Merritt respondents contend the ALJ applied an incorrect burden of proof. They also argue the evidence does not support the ALJ's finding that the claimant's need for treatment and temporary total disability (TTD) are causally related to an injury sustained at Merritt rather than an intervening injury. We affirm.
The lengthy procedural history of this case is summarized in our Order of Remand dated June 17, 2004. Suffice it to say that in the June 17 order we remanded the matter to the ALJ with directions to exercise her discretion and determine whether to admit post-hearing medical reports of Dr. Bainbridge which were offered by the Merritt respondents. On remand the parties agreed to allow the ALJ to consider the reports without the necessity of an additional hearing. The ALJ then considered the reports and issued the Order on Remand dated October 18, 2004. The Merritt respondents seek review of this order.
The issue is whether the claimant's current condition, described as cervical facet syndrome with upper extremity radiculitis, is causally-related to the industrial injury which the claimant sustained at Merritt in January 1997, or is the product of an intervening injury or disease process caused by the claimant's subsequent employment with respondent D D Metal Products (D D). Relying on the claimant's testimony concerning the relative nature of the two periods of employment, and crediting the expert medical opinions of Dr. Centeno, Dr. Haney, and the November 7, 2001, report of Dr. Hughes, the ALJ concluded the claimant proved that the current symptoms are the result of a natural progression of the 1997 injury. Consequently, the ALJ ordered the Merritt respondents to provide medical treatment and pay TTD benefits commencing February 28, 2000, the date the claimant left work with D D.
I.
On review, the Merritt respondents contend the ALJ applied an incorrect burden of proof by requiring them to demonstrate that the claimant sustained a "substantial permanent aggravation" of his injury while employed by D D. This contention is apparently based on findings of fact and conclusions of law contained in prior orders issued by the ALJ. We perceive no error.
We do not dispute the Merritt respondents' contention that the claimant was required to prove by a preponderance of the evidence that the current symptoms and disability are caused by the 1997 industrial injury. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002) (discussing principle in context of petition to reopen based on worsened condition). The question of whether the claimant has met the burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, supra. Similarly, the issue of whether the claimant's condition is related to the 1997 industrial injury or to the alleged intervening injury at D D is also one of fact. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002). In contrast, the substantial permanent aggravation test is applied to assign liability when the claimant sustains a compensable occupational disease and has been exposed to the disease while in multiple employments, or while the employer has been covered by more than one insurer. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995).
Here, the ALJ's October 18 Order on Remand reflects that she applied the correct standard of proof in finding that the claimant's condition is causally related to the 1997 injury at Merritt. The order contains no reference to the "substantial permanent aggravation" standard; therefore, we decline to infer the ALJ applied that test. See Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003) (in the absence of a showing to the contrary the ALJ is presumed to have considered and applied the relevant legal principles). While the ALJ's prior orders may contain references to the substantial permanent aggravation test, those orders were set aside and are not now before us for review.
II.
The Merritt respondents next contend the evidence does not support the ALJ's determination that the claimant's symptoms are the result of the 1997 injury rather than an intervening injury or disease which the claimant sustained at D D or at home. The Merritt respondents argue that because the claimant experienced symptoms while working at D D that this employment must be the cause of his disability and need for treatment. Further, the Merritt respondents argue the ALJ erred in crediting the opinions submitted by the claimant's medical experts, incorrectly weighed the reports of Dr. Hughes, and gave undue weight to the claimant's opinions concerning causation. We reject these arguments.
Because causation presents a factual question we must uphold the ALJ's determination of the issue if supported by substantial evidence in the record. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2004; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). In this regard, we note that causation need not be proven by expert opinion, but where such evidence is presented its weight and credibility is a matter for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). To the extent a medical expert's opinions are conflicting, the ALJ may resolve the conflict by crediting either part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Initially, we note the mere fact the claimant reported experiencing symptoms while performing activities at D D, such as "flipping" his hood, did not require the ALJ to concluded that the claimant sustained a new injury or disease. The ALJ could, and did, conclude that these symptoms did not prove a new injury or disease, but instead they represented the logical results of a natural worsening caused by the 1997 injury. There was no factual or legal barrier to this determination. F.R. Orr Construction v. Rinta, 717 P.2d 965, 968 (Colo.App. 1985).
The record contains ample evidence to support the ALJ's finding that the claimant's symptoms were caused by the 1997 injury rather than a new injury or disease sustained at D D. The claimant testified that the welding work at D D was much lighter than the work at Merritt, and this testimony was corroborated by witness Clegg. Further, the claimant testified that he did not sustain any injury when moving or lifting the "gas bottle" at D D, and the gas bottle fell because it tipped over when the claimant was attempting to move it with a cart. (Tr. February 12, 2002, Pp. 15, 62). Finally, the claimant testified that his neck symptoms began before he left Merritt, and gradually worsened after he left Merritt for the D D job. The claimant did not associate the neck and upper extremity symptoms with any injury at D D, but believed they represented a natural progression of problems which began after the 1997 injury. The weight to be assigned the claimant's testimony was for the ALJ, and we decline the Merritt respondents' invitation to substitute our judgment for the ALJ's.
Neither did the ALJ err in crediting the claimant's medical evidence. Dr. Centeno testified that based on his knowledge of the claimant's history and medical records the 1997 injury was probably the cause of the subsequent neck and upper extremity problems, especially because Dr. Centeno could identify no other likely cause. (Tr. February 12, 2002, Pp. 94, 96, 100). This opinion was corroborated by the report of Dr. Haney, as well as the November 7, 2001 report of Dr. Hughes. It is true Dr. Hughes later changed his opinion because he believed the gas bottle incident proved the claimant was performing heavy work at D D, and because the claimant's symptoms improved after he left D D. However, the ALJ concluded that Dr. Hughes changed his opinion based on an incomplete understanding of the gas bottle incident and the claimant's duties at D D. Further, the ALJ credited the claimant's hearing testimony that, although his symptoms waxed and waned, he did not improve after leaving D D. Therefore the ALJ acted within her authority when resolving the conflict between the first and second reports of Dr. Hughes and choosing to credit the first. The mere fact that the ALJ might have resolved the conflicts differently affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Insofar as the Merritt respondents make other arguments, they are factual in nature. Considering the standard of review, we conclude they are without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated October 18, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Douglas W. Younger, Henderson, CO, Stan Rasmussen, Merritt Equipment Company, Henderson, CO, D D Metal Products, Broomfield, CO, Suzan Hassebrook, Fireman's Fund Insurance Company, CO, Sierra Insurance Group, c/o Amy Nelson, Crawford Company, Englewood, CO, Chris L. Ingold, Esq., Denver, CO, (For Claimant).
David J. Dworkin, Esq., Denver, CO, (For Respondents Merritt Equipment Company and Fireman's Fund Insurance Company).
John H. Sandberg, Esq., S. Teller St., Lakewood, CO, (For Respondents D D Metal Products and Sierra Insurance Group).