Opinion
W.C. No. 4-794-282.
October 14, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 9, 2010 that denied her claim for compensation. We affirm.
The claimant sought benefits based on her assertion that she sustained an occupational disease. The respondents asserted that the claimant was barred by the applicable statute of limitations. The ALJ found that the claimant had not established a basis for her claim and, also, that any such claim was time-barred.
Several of the ALJ's findings are summarized as follows and include references to the record. The claimant began working for the employer in November 2005 as a finish sander. The claimant's work was light and not strenuous. Tr. at 12 (claimant testified what when she finish sanding it was "easy light" as opposed to regular sanding, which "is very hard."), 55 (claimant's supervisor testified that claimant worked in finish sanding area).
The claimant previously worked as a seamstress. The claimant had longstanding medical issues with her bilateral upper extremities since at least July 2002, and she complained of wrist problems in 2002. Lee Depo. at 10-12, 15 (claimant worked with him in alteration until 2001 or 2002 and she stopped working because of pain, including pain in her back, shoulder, and hand); Choe Depo. at 7, 18(claimant worked in alterations before working for respondent employer and could not continue sewing because of pain).
The claimant's personal physician, Dr. Kim, reported the claimant complaining of numbness in both hands and worsening pain on July 30, 2002. Exhibit D at 37. The claimant did not allege and Dr. Kim never stated that the claimant's upper extremity symptoms were related to or caused by her work for the respondent employer. The claimant later saw Dr. Bierbrauer, but on her first visit with him she did not relate her symptoms to her work with the respondent employer. Dr. Bierbrauer later performed left carpal tunnel release surgery on the claimant, who initially did not advise the employer that she believed her surgery was work-related. Dr. Bierbrauer opined that the claimant's condition was work-related, but he erroneously stated that the claimant's job was heavy labor. Exhibit B at 31.
Dr. Polanco became the claimant's authorized treating physician and opined that the claimant had pre-existing carpal tunnel syndrome and that her related symptoms and diagnosis were not work-related. Polanco Depo. at 20. The ALJ credited the opinion of Dr. Polanco that the claimant's upper extremities condition and need for medical treatment is not causally related to her work with the employer. However, the ALJ was not persuaded by the opinions of Dr. Rook and Dr. Weinstein that the claimant's upper extremity disease is work-related. The ALJ also determined that the claim was time-barred.
I.
The claimant argues that the ALJ's decision is not supported by substantial evidence. Because we conclude that substantial evidence supports the ALJ's decision we decline to disturb the ALJ's order denying the claim for benefits.
The claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. The claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant's employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). Because the issue of causation is factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. This standard of review requires deference to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
Regarding the ALJ's determination that she did not sustain a compensable occupational disease, we understand the claimant to be asserting that the ALJ erred by effectively ignoring the opinions of Dr. Rook and Dr. Richman, who opined that the claimant's condition is related to her work with the employer. However, rather than ignoring their opinions the ALJ expressly rejected them. More importantly, it is for the ALJ to assess the weight and credibility of expert medical testimony pertaining to the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). The ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Moreover, we may not reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo. App. 1994). Consequently, the existence of conflicting testimony or evidence that would support a contrary result does not provide a basis for setting aside the order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999). See also, Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion).
The ALJ relied on the opinions of Dr. Polanco. In this respect the claimant argues that the ALJ failed to reconcile Dr. Polanco's statement that he did not have sufficient information to rule out the possibility that the claimant aggravated a pre-existing condition while working for the employer. Exhibit at 19. We note that at one point Dr. Polanco writes that "the aspect of a work related aggravation should be ruled out," but later writes that "there is insufficient information to rule out a work-related aggravation of her pre-existing condition." Nonetheless, Dr. Polanco opined that "it would appear that her condition is not causally related to her work activities." Moreover, as noted above, Dr. Polanco later opined in his deposition that claimant's condition is not causally related to work. As with the opinions of other physicians, it was up to the ALJ to consider and weigh their opinions. Colorado Springs Motors, Ltd. v. Industrial Commission, supra. We find no basis for disturbing the ALJ's determination that the claimant failed to establish a compensable injury or occupational disease.
II.
The claimant also takes issue with the ALJ's determination that her claim is barred by the applicable statute of limitations. Section 8-43-103(2), C.R.S. provides that the right to workers' compensation is barred unless a formal claim is filed within two years of the injury. The statute of limitations begins when the claimant, as a reasonable person, knows or should have known the "nature, seriousness and probable compensable character of his injury," City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The requirement that the claimant recognize the "seriousness" of the injury contemplates the claimant will recognize the gravity of the medical condition. Furthermore, a "compensable" injury is one which is disabling and entitles the claimant to compensation in the form of disability benefits. City of Boulder v. Payne, supra; Romero v. Industrial Commission, 632 P.2d 1052 (Colo. App. 1981). Therefore, to recognize the "probable compensable character" of an injury, the injury must be of sufficient magnitude that it causes a disability which would lead a reasonable person to recognize that he may be entitled to compensation benefits. Romero v. Industrial Commission, supra (claimant was not obligated to report an injury until its seriousness was discovered and she was forced to stop work); Hoaglund v. B B Excavating, W.C. No. 4-465-123 (September 13, 2001). In this regard, we have previously stated that "[f]or purposes of the statute of limitations, a `compensable' injury is one which is disabling, and entitles the claimant to compensation in the form of disability benefits." Emrich v. Jackson Hewitt Tax Service, W.C. No. 4-241-443 (October 27, 1998). See also Sopp v. City of Colorado Springs, W.C. No. 4-443-162 (January 10, 2002). The determination of when the claimant recognized the probable compensable character of the injury is normally a question of fact for resolution by the ALJ. As such, of course, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.
As to the ALJ's determination that the claim is time-barred, the claimant asserts that the ALJ failed to resolve conflicts in the evidence concerning the reason she left her previous employment as a seamstress. The ALJ found that the claimant's co-workers at her earlier employment testified that the claimant complained in 2002 of wrist problems due to her work as a seamstress working in clothing alterations. The ALJ also found that these problems caused the claimant to quit the alterations business. The claimant notes that the claimant's co-workers testified, as did she, that the claimant's back or shoulder problems contributed to her quitting the alteration business. The claimant therefore asserts that the ALJ failed to resolve conflicts in the evidence as to why she left the alteration business. According to the claimant the reason she left her business is critical to the statute of limitations issue because there is no indication as to how her carpal tunnel syndrome could be related to anything outside of her employment with the respondent employer.
We disagree that there is no evidence indicating that the claimant's carpal tunnel condition was related to conditions outside of her employment with the respondent employer. It is true that the ALJ found that co-workers Choe and Lee testified that the claimant complained of problems in her wrists in 2002 and that the problems were due to her work as a seamstress. However, Mr. Choe indicated that the claimant said she could not do any sewing due to general pain. Choe Depo. at 18. Mr. Choe's reference to the claimant's wrist problems appears to be related to her subsequent work with this employer. Choe Depo. at 15. Mr. Lee testified about the claimant having pain in her back, shoulder, and hand, rather than wrists, while working in alterations. Lee Depo. at 11-12.
However, the ALJ was persuaded that a reasonable person in the claimant's position would realize more than two years' prior to notifying the employer on May 31, 2009 that her symptoms were serious and interfering with her activities and potentially related to her work with the employer. The ALJ concluded that based on seeking treatment for her condition for many years the claimant should have recognized that her condition might be compensable. The medical records cited by the ALJ, including those of Dr. Kim in 2002 and 2005, and Action Potential, which provided physical therapy in 2003, support the ALJ's determination that the claimant had issues with her upper extremities at least as early as 2002. Exhibit D at 37-38, 44; Exhibit E at 54.
Nonetheless, as noted above, where the claimant continues to work her injury would not be disabling and the seriousness of her injury may not be realized until she later stops working. See, e.g., Industrial Commission v. Canfield, 172 Colo. 18, 21 469 p. 2d 737, 738 (1977) (although claimant sought medical treatment day after accident, injury not immediately disabling and she continued to work, thereby raising issue of when injury occurred and statute of limitations commenced). According to the ALJ's findings the claimant reported her claim within two weeks of having surgery and not returning to work. In any event, having upheld the ALJ's determination that the claim for benefits is not compensable, we do not reach whether the ALJ erred in finding the claim time-barred.
IT IS THEREFORE ORDERED that the ALJ's order dated June 9, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ John D. Baird
__________________________________ Thomas Schrant
COLORADO ARCHITECTURAL MILLS WORKS SUPPLY, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
MCDIVITT LAW FIRM, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: CRAIG R. ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Respondents).