Opinion
W.C. No. 4-727-439.
August 10, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated May 27, 2010, that denied and dismissed the claimant's request for workers' compensation benefits. We affirm.
The claimant suffered an admitted industrial injury to her right knee on July 26, 2006 and was treated by Dr. Parsons. Dr. Parsons determined that the claimant had reached MMI for her right knee and assigned an extremity impairment rating. The respondents filed a Final Admission of Liability consistent with Dr. Parsons' October 22, 2009 report. The claimant filed an application for hearing contending that she suffered a compensable injury to her left knee as a result of continually compensating for and overexerting her left knee because of the diminished function in her right knee.
The ALJ credited Dr. Lindberg's opinions that the claimant's need for left knee medical treatment was caused by the natural progression of her pre-existing, degenerative osteoarthritis. The ALJ concluded that the claimant had failed to establish by a preponderance of the evidence that she suffered a compensable left knee injury as a result of her admitted right knee industrial injury.
On appeal the claimant argues that there is substantial and overwhelming evidence demonstrating that she suffered a compensable left knee injury as a result of her admitted industrial injury to her right knee. The claimant maintains that her right knee industrial injury aggravated and accelerated a preexisting condition in her left knee.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her left knee injury arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S.; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Where the claimant's entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997).
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). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. 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).
To a significant degree the case turned on the ALJ's evaluation of the conflicting opinions expressed by Dr. Lindberg and Dr. Parsons. We note preliminarily that it is the province of the ALJ to weigh the evidence and resolve contradictions in the evidence. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The ALJ made the following findings of fact concerning the opinions of Dr. Lindberg. The claimant's employment activities did not aggravate, accelerate, or combine with her degenerative left knee condition to produce a need for medical treatment. Dr. Lindberg persuasively explained that the claimant suffered from preexisting, degenerative osteoarthritis in her left knee. The degenerative changes resulted from the claimant's June 2006 left knee menisectomy. Dr. Lindberg opined that the claimant may have suffered a temporary aggravation of her preexisting left knee osteoarthritis as a result of her right knee condition, but any aggravation did not cause the need for additional medical treatment. Moreover, Dr. Lindberg stated that activities of daily living would aggravate the claimant's preexisting left knee osteoarthritis. Dr. Lindberg summarized that the claimant would have experienced left knee pain on a daily basis regardless of whether she had suffered a right knee injury and ultimately required a total knee replacement.
In contrast the ALJ made the following findings of fact concerning the opinions of Dr. Parsons. Dr. Parsons explained that the claimant suffered left knee stress while undergoing medical treatment for her right knee. Dr. Parsons opined that the increased stress caused the claimant's left knee symptoms. However, Dr. Parsons' determination fails to consider the claimant's pre-existing left knee degenerative osteoarthritis. Moreover, Dr. Parsons acknowledged that the claimant did not exhibit an altered gait on September 29, 2009 and she did not assign an impairment rating or recommend any medical treatment for the claimant's left knee at the time of MMI on October 22, 2009.
The claimant does not argue that the experts did not express the opinions as found by the ALJ listed above. Rather the claimant argues that the ALJ made various errors in evaluating the medical evidence.
The claimant argues that the ALJ erroneously interpreted Dr. Parsons' omission of the claimant's left knee injury in her rating report as supportive of his finding. The claimant does not dispute that Dr. Parsons did not assign an impairment rating or recommend any medical treatment for the claimant's left knee at the time of MMI on October 22, 2009. Rather, the claimant argues that Dr. Parsons' other reports stated that the claimant suffered a compensatory left knee strain. Exhibit 3.
We are not persuaded that the ALJ committed reversible error by expressly considering Dr. Parsons' omission of the claimant's left knee injury in her rating report as supportive of his finding that the left knee condition was not compensable. A physician is required to rate impairment in accordance with the AMA Guides. It is now well established that a medical impairment rating inherently includes the physician's determination of the cause of the impairment and whether the impairment is subject to apportionment. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998). In our view, the ALJ was free to draw inferences from the fact that Dr. Parsons did not include the claimant's left knee injury in her initial rating report in evaluating her opinions expressed in other reports that the left knee condition was compensable.
The claimant argues that the ALJ erred in discrediting the opinions of Dr. Parsons because her "determination fails to consider the claimant's pre-existing left knee degenerative osteoarthritis." The claimant contends that the ALJ must have overlooked the testimony of Dr. Parsons that the claimant's prior left knee injury did not change her opinion that the current symptoms were compensable. The claimant contends that in a portion of Dr. Parsons' deposition she explained that the existence of the preexisting left knee injury did not change her opinion that the claimant's current left knee symptoms were compensable because the left knee was previously asymptomatic. Parsons Depo. at 9.
It is true that Dr. Parsons testified that the fact that the claimant had a previous left knee injury did not change her opinion in any way. Parsons Depo. at 9. However, as we read the ALJ's order he was referencing the reports of Dr. Parsons where she expressed the opinion on numerous occasions that the claimant had suffered a compensatory left knee strain without consideration of the claimant's preexisting left knee degenerative osteoarthritis. Exhibit 3 at 1; Exhibit 4 at 1; Exhibit 5 at 1; Exhibit 6 at 1 2; Exhibit 7 at 1. In our view the ALJ's finding is amply supported by the record. Further we are not persuaded that such a finding is not relevant in evaluating the persuasiveness of the opinions expressed by Dr. Parsons.
Further, the claimant had undergone a left knee menisectomy in June 2006 and Dr. Parsons testified that this did not affect "in any way" her opinion on the cause of the claimed symptoms in the claimant's left knee, despite the fact that the claimant experienced pain in her left knee six months before her total right knee replacement in June 2007. The ALJ additionally noted that Dr. Parsons had acknowledged that the claimant had not exhibited an altered gait as a result of her industrial injury at the time she assigned her original impairment rating. As we read the ALJ's order, he considered Dr. Parsons' reports and testimony as a whole and they evidenced a failure to consider the claimant's pre-existing left knee degenerative osteoarthritis. Such a determination is abundantly supported by the opinions of Dr. Lindberg and is a reasonable inference drawn from the record and so is binding on us. Section 8-43-301(8), C.R.S. Thus we are not persuaded that the ALJ erred in determining not to credit Dr. Parsons' opinions because she failed to consider the claimant's pre-existing left knee degenerative osteoarthritis.
Further, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). To the extent that a witness's testimony was inconsistent, the ALJ was free to rely on those portions she found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). It is clear that the ALJ rejected the opinion of Dr. Parsons involving the claimant's pre-existing left knee degenerative osteoarthritis referenced by the claimant.
The claimant argues that the ALJ erred in relying on the opinions of Dr. Lindberg because those opinions were based solely on unsubstantiated assumptions. Specifically the claimant attacks the ALJ's determination that Dr. Lindberg persuasively opined that the claimant suffered from progressive osteoarthritis in her left knee and that the rehabilitation of her right knee didn't cause or hasten the development of the arthritis. The claimant does not question that the record supports the determination that Dr. Lindberg expressed such opinions. In any event the evidence fully supports such a determination. Exhibit B; Lindberg Depo. at 10-12. We note that there appears to be no dispute that the claimant underwent surgery on her left knee in 2006, which included a medial menisectomy. Exhibit B. Rather the claimant argues that because Dr. Lindberg stated in his report that he did not know how much arthritis the claimant had at the time of her surgery in 2006 his opinion on causation is based on an unsubstantiated assumption. The claimant argues that it is "odd" how Dr. Lindberg could have concluded that the claimant's symptoms are solely related to progressive arthritis if he had no basis upon which to calculate the amount of arthritis the claimant had previously. We are not persuaded that the ALJ was compelled to discount the opinions of Dr. Lindberg.
Under cross-examination Dr. Lindberg explained the following. The claimant had advanced osteoarthritis in her left knee that predated her right knee surgery. Lindberg Depo at 11-13. The stress of the rehabilitation of her right knee might cause pain in her left knee but it did not cause the osteoarthritis and did not cause the need for a total knee arthroplasty. Dr. Lindberg explained that the claimant might have a temporary aggravation. Depo at 11-13. 12-13.
We recognize that a compensable injury may be the result of an industrial aggravation of a preexisting condition as long as the 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). However, the question of whether a particular disability is the result of the natural progression of a preexisting condition, or the subsequent aggravation or acceleration of that condition, is itself a question of fact. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001); Chasteen v. King Soopers April 10, 2002, W. C. No. 4-445-608. Here the ALJ found that the need for medical treatment was not caused by the aggravation of a pre-existing condition. In our view the opinions of Dr. Lindberg fully support such a determination.
We read the order as correctly reflecting that when a claimant experiences symptoms while at work or, as here, when undergoing treatment for a compensable injury, it is for the ALJ to determine whether the subsequent need for treatment was caused by an industrial aggravation of a preexisting condition or by the natural progression of the preexisting condition. See Cotts v. Exempla, W. C. No. 4-606-563 (August 18, 2005). The mere experience of symptoms in her left knee during the rehabilitation process for the industrial injury to her right knee does not necessarily require a finding that the employment, or as here, the treatment for an industrial injury, aggravated or accelerated the pre-existing condition. See Cotts v. Exempla, supra. Resolution of that issue is one of fact for the ALJ. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
This case involved starkly contrasting expert opinions. As noted above the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. The ALJ might have accepted the opinions of Dr. Parsons but, regardless of the ability of such evidence to support conflicting inferences, we must uphold the ALJ's determination. See F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
IT IS THEREFORE ORDERED that the ALJ's order dated May 27, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
MARIANNE P BREEDS, BRIGHTON, CO, (Claimant).
NORTH SUBURBAN MEDICAL CENTER, Attn: MS CATHY HYLAND, THORNTON, CO, (Employer).
ZURICH INSURANCE, Attn: MS MONICA WESTLUND, C/O: BROADSPIRE, DENVER, CO, (Insurer).
FOGEL, KEATING, WAGNER POLIDORI SHAFNER, Attn: NICK D. FOGEL, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ILENE FELDMEIER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).