Opinion
W.C. No. 4-697-764.
October 6, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated April 21, 2009 that denied her claim for benefits regarding her left shoulder. We affirm.
Several of the ALJ's findings of fact are summarized as follows. The claimant's job duties included using a keyboard at her desk. The claimant sustained an admitted injury to her right upper extremity on November 1, 2005 based on "repetitive trauma." Dr. Hanson treated the claimant. The claimant reported improvement on May 9, 2006, but advised Dr. Hanson at that time that she had left dorsal forearm pain beginning that morning, which she related to using her left forearm and hand for telephone and keyboard use. On May 24, 2006 the claimant reported that her left forearm pain had resolved. Dr. Hanson continued to treat the claimant for her right upper extremity injury. The claimant subsequently declined at that time to undergo surgery recommended for her condition and Dr. Hanson placed the claimant at maximum medical improvement without any permanent impairment or work restrictions. Dr. Hanson later placed the claimant at maximum medical improvement again, following surgery for her right shoulder and he assessed a seven per cent upper extremity rating.
The claimant reported neck and right shoulder injuries to emergency room staff following a motor vehicle accident on October 19, 2006. The claimant saw both Dr. Hanson and her personal physicians after the motor vehicle accident. On January 8, 2007 the claimant reported to another physician the onset of left shoulder pain from using her left arm more often. The claimant had surgery for her right shoulder on January 23, 2007. On February 6, 2007 the claimant reported left shoulder and mid-biceps pain to Dr. Hanson and indicated that the pain started a few weeks prior to then. Dr. Hanson released the claimant to return to work on March 1, 2007 with restrictions. On March 22, 2007 the claimant advised Dr. Hanson that her left shoulder had improved and later advised him on April 6, 2007 that her left shoulder symptoms had not changed. Dr. Hanson noted later that month that the claimant obtained treatment for her left shoulder through her private physicians. On May 4, 2007 Dr. Hanson noted that the claimant had cervical and left shoulder pain that was unrelated to her workers' compensation claim.
After Dr. Hanson placed the claimant at maximum medical improvement for the second time and provided an upper extremity rating, the claimant underwent a Division-sponsored independent medical examination (DIME) with Dr. Reichardt. Among other things, Dr. Reichardt noted left shoulder pain related to overuse regarding her right shoulder limitation. He placed the claimant at maximum medical improvement for her right shoulder injury and provided an 11 per cent upper extremity rating. Dr. Reichardt also opined that the claimant was not at maximum medical improvement for her left shoulder injury. Nonetheless, he assigned an identical impairment rating for the claimant's left upper extremity. The ALJ recited Dr. Reichardt's deposition testimony at length. Dr. Reichardt attributed half of the responsibility for the claimant's left upper extremity problems to her car accident and half to the claimant's admitted workers' compensation injury concerning her right upper extremity.
The ALJ considered the claimant's testimony to the effect that her left upper extremity symptoms were related to adjustments to her work station and a corresponding increase in the use of her left side and found that those symptoms would have improved during the time she was off work following surgery for her right shoulder. However, the ALJ found, the claimant did not report any improvement in her symptoms until after she returned to work. Moreover, the ALJ did not find credible the claimant's testimony about the onset of her left upper extremity symptoms. The ALJ determined that the claimant failed to prove by a preponderance of the evidence that her left should condition was a compensable component of the admitted injury to her right shoulder.
I.
The threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that the ALJ must determine, if contested, under the preponderance of the evidence standard. See Leprino Foods Co. v. Industrial Claim Appeals Office, 134 P.3d 475, 483 (Colo. App. 2005), citing Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo. App. 2001). Consequently, the DIME physician's opinion on this issue is not entitled to special or presumptive weight. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).
To prove a compensable injury, the claimant had the burden to show by a preponderance of evidence that her left shoulder injury arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a "contested fact is more probable than its nonexistence." Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979).
On review the issue is whether the ALJ's findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Under this standard we are required to defer to the ALJ's resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
The claimant argues that the DIME physician's opinion that her work-related injury contributed to half of her left shoulder condition is sufficient to find her claim compensable, as is medical evidence concerning Dr. Hanson's treatment of the claimant. However, the ALJ must 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). Furthermore, 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).
II.
The claimant further asserts that it is implicit in the ALJ's findings that he required any overuse of the claimant's left arm to have been work-related before her claim was compensable. In addition, the claimant argues that the ALJ should not have credited the finding that the claimant's shoulder condition did not improve while off work since it stands to reason that the claimant would have had to overuse her left arm following surgery on her right shoulder. We are not persuaded that the ALJ misconstrued the applicable legal standards or made improper inferences from the record.
The ALJ discussed the claimant's left shoulder problems in the context of her work duties due to the claimant's own testimony. The claimant testified that after she started having problems with her right shoulder the employer "switched everything to my left side and I started doing the same thing with my left shoulder." Tr. at 18. She stated that she started using her left hand and then she began "having problems with [her] left." Tr. at 20. The ALJ was not persuaded that the claimant's left shoulder symptoms were related to changes in her work station since the claimant did not report any improvement in them until after she returned to work, rather than during the time she was off work due to surgery. We also note that the ALJ is presumed to possess special expertise and competence in dealing with medical evidence. Thus, we presume that the ALJ is competent to evaluate evidence in cases of this character. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
In determining that the claimant failed to carry her burden to establish a compensable injury the ALJ referred to the claimant's testimony that her left shoulder symptoms "were related to her employer moving her phone, mouse and other amenities from her right side to her left side after she developed problems with her right shoulder." The ALJ went on to make the following findings:
If Claimant's symptoms were related to changes in her work station, as testified to by Claimant, one would expect that Claimant's symptoms would have improved in the six weeks she was off following her right shoulder surgery. Instead, Claimant didn't report any improvement in her symptoms until after she returned to work.
Findings of Fact, Conclusions of Law, and Order at 8, ¶ 20. Where the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to determine the inference to be drawn. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). In that event, the issue on review is whether the ALJ's inference is a permissible one under the totality of the circumstances. Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo. App. 1981).
The claimant asserts that the ALJ should have drawn a different inference from the finding that her left shoulder condition did not improve while she was off work for several weeks. The claimant made an assertion to the effect that her left shoulder symptoms were related to overcompensating at work for her right shoulder. The ALJ reasonably inferred that the claimant's left shoulder condition would improve when she was removed from her working conditions for a prolonged period following her right shoulder surgery. Moreover, it was solely the responsibility of the ALJ to weigh the competing evidence, to determine its probative value, and to draw reasonable inferences from the evidence found by the ALJ to be persuasive. Harrison Western Corp. v. Claimants in re Death of Hicks, 185 Colo. 142, 522 P.2d 722 (1974). The ALJ's findings are supported by the record and are, therefore, binding on review. Section 8-43-301(8), C.R.S. 2009; Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated April 21, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
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BRENDA INCE, 10131 MOCKINGBIRD LANE, LITTLETON, CO, (Claimant).
HCA PATIENT ACCOUNT SERVICES CENTER, DENVER, CO, (Employer).
BROADSPIRE SERVICES, INC., Attn: MS MONICA WESTLUND, DENVER, CO, (Insurer).
LAW OFFICES OF DARRELL S ELLIOTT, PC, Attn: ROBERT F JAMES, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC J POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).