IN THE MTR OF VARGAS v. CENTRAL MASONRY, W.C. No. 4-802-546 (7/23/2010)


IN THE MATTER OF THE CLAIM OF ALFONSO VARGAS, Claimant, v. CENTRAL MASONRY, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-802-546.Industrial Claim Appeals Office.
July 23, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 4, 2010, that denied certain medical treatment for the claimant. We affirm.

The claimant sustained an industrial injury on April 16, 2009. A crane operator in lowering a tub full of concrete mud shifted the tub sideway against the upper thighs of the claimant, pressing him backward against a safety railing. The claimant sought treatment for his lower back and for bilateral knee surgery. The ALJ determined that the claimant had failed to prove by a preponderance of the evidence that the medical treatment for his lower back and the recommended bilateral knee surgery was reasonable and necessary to cure and relieve him from the effects of the industrial injury. The claimant appeals that determination.

Section 8-42-101(1)(a), C.R.S., provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between the 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). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-301(8); City of Durango v. Dunagan, supra.

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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 contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). The substantial evidence standard also requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P. 2d. 1182 (Colo. App. 1990). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

I.
The claimant contends that the ALJ abused his discretion in finding, based upon speculation, that the claimant’s bilateral meniscus tears were a result of long-standing degenerative changes. The ALJ credited the medical opinion and testimony of Dr. Fall as persuasive in finding that the meniscal tears in the claimant’s knees were the result of long-standing degenerative changes, and not an acute result of the industrial accident on April 16, 2009.

The claimant contends that the opinions of Dr. Fall were merely unsupported conjecture. The claimant argues that he testified that he did not have pain in his knees or legs prior to the industrial accident and Dr. Fall agreed that people with torn meniscus have pain in their knees. The claimant further argues that Dr. Fall did not have any MRIs prior to the claimant’s injury and therefore she was merely speculating that the claimant had meniscal tears in his knees prior to the injury, without any evidence to support such opinion. We are not persuaded by the claimant’s arguments to interfere with the ALJ’s order.

We first note that the ALJ’s determination was not solely based on his finding that the meniscal tears in the claimant’s bilateral knees were the result of long-standing degenerative changes. Dr. Fall opined in her reports that the claimant had lower extremity contusions and abrasions as a result of the industrial injury but his current symptoms were not consistent with the alleged mechanism of the industrial injury. Exhibit M at 97 103.

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The ALJ found that the meniscal tears were not the acute result of the industrial injury. In crediting Dr. Fall’s opinion that the surgical intervention for the claimant’s bilateral knees was unrelated to his industrial accident the ALJ noted the following testimony:

[Claimant’s] MRI’s show multicompartmental-meaning not just in one area-degenerative changes. And meniscus tears . . . are also considered degenerative changes and can occur on a degenerative basis. They don’t have to be acutely traumatic, and they don’t even have to be symptomatic.
So he’s got bilateral knee . . . degenerative changes, and at least on my exam, had diffuse complaints of pain, nothing pinpointing any particular area. . . . .
If the surgery is to treat the meniscus tears, there was no mechanism of injury to cause meniscus tears in this case.

Fall Depo. at 24-25

In addition, on the issue of the mechanism of the injury the ALJ noted opinions from other physicians consistent with Dr. Fall’s. The ALJ made the following findings of fact. The claimant was evaluated by Dr. Ogin on October 8, 2009 who stated that he was not sure how a heavy weight pressed on the claimant’s upper thighs could cause his meniscal tears although the claimant denied having knee pain prior to his work injury and had knee pain persistently afterwards. Exhibit K at 93. Dr. Ogin also noted that the claimant also had diffuse leg pain, which he could not explain on a physiologic basis. Exhibit K at 93. Dr. Ogin therefore determined that a pain psychology evaluation was warranted and referred the claimant to Dr. Kenneally. Exhibit K at 93. Dr. Kenneally’s psychological testing indicated a conscious contribution to the claimant’s pain symptoms and she advised all physicians to obtain objective measures of the patient’s reported symptoms. Exhibit K at 96. Dr. Beatty examined the claimant on November 10, 2009 and concluded that the claimant appeared to display some signs of symptom magnification. Exhibit L at 60.

Dr. Fall examined the claimant on November 13, 2009. On physical examination, Dr. Fall observed nonphysiologic findings, including pain behaviors, overreaction, greater than 3 of 5 Waddell’s signs, superficial tenderness to palpation, inconsistencies on straight-leg-raise testing. Exhibit L at 102; Fall Depo. at 9-12. Dr. Fall noted that the claimant appeared to self-limit the range of motion of his lumbar spine. Dr. Fall explained that Dr. Ogin also observed nonphysiologic findings on physical examination and that Dr. Beatty diagnosed symptom magnification. Fall Depo. at 14-16. Under these

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circumstances, we are not persuaded that the ALJ must accept the claimant’s testimony that he did not have pain in his knees or legs prior to the industrial accident.

Further, the ALJ’s determination that the meniscal tears in the claimant’s bilateral knees were the result of long-standing degenerative changes is supported by substantial evidence in the record. Dr. Fall opined that the bilateral knee MRIs are consistent with chronic degenerative changes. Exhibit M at 97. As suggested by the claimant Dr. Fall did not have MRIs taken of the claimant’s knee prior to the industrial injury. Fall Depo. at 36-37. This questioning may be viewed as weakening the physician’s testimony. However, Dr. Fall explained that physicians can look at such things as multilevel degenerative changes and atrophy of muscles to determine if there were long-term problems. Fall Depo. at 40-41 20. In any event, we may not interfere with the ALJ’s credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Nor may we interfere with the ALJ’s assessment of an expert witness’s testimony because where, as here, expert testimony is presented, the weight to be accorded the testimony is a matter exclusively within the discretion of the ALJ as fact-finder. Rockwell Int’l v. Turnbull, supra.

We are not persuaded to interfere with the ALJ’s determination to credit the opinions of Dr. Fall that the meniscal tears in the claimant’s knees were the result of a degenerative condition unrelated to the industrial accident. There is substantial evidence supporting the ALJ’s determination that the claimant’s bilateral meniscus tears were a result of long standing degenerative changes and not the industrial accident. We are also persuaded that there is substantial evidence supporting the ALJ’s determination that the claimant’s bilateral meniscus tears were not consistent with the alleged mechanism of the industrial injury. Therefore, we are bound by these determinations. Section 8-43-301(8).

II.
The claimant next contends that the ALJ erred in failing to consider whether the industrial injury aggravated, accelerated or combined with the preexisting degenerative conditions to produce the claimant’s disability requiring surgery. The ALJ credited Dr. Fall’s medical opinion in determining that the claimant failed to show it more probably true than not that the treatment for his lower back complaints was reasonable, necessary, or related to the mechanism of the injury. The claimant citing Merriman v. Industrial Commission, 210 P.2d 448 (Colo. 1949) contends that once the ALJ determined that the claimant had preexisting degenerative conditions in his back and knees, he was required to determine whether the injuries he sustained to his legs and lower back in the industrial injury aggravated the preexisting degenerative conditions. The claimant argues that the ALJ failed to make this determination; therefore, he committed error and the case should

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be remanded for determination of whether the preexisting conditions were aggravated by the injury.

On the issue of the claimant’s alleged back condition, the ALJ noted that Dr. Fall persuasively testified that the claimant’s lumbar spine complaints were unsupported by physical examination findings and inconsistent with the claimant’s mechanism of injury. Regarding the mechanism of injury, the ALJ noted that Dr. Fall testified:

First of all, he was basically standing in place when . . . something rolled onto him and caused abrasion to his thigh and . . . toes, so obviously it was a crushing-contusion type of injury. But there was really no mechanism of injury for the lumbar spine. He was pressed up against some bars on the back.

Fall Depo. at 17.

The ALJ credited Dr. Fall’s opinion that the treatment for the claimant’s lower back complaints was not reasonable, necessary, or related to the mechanism of injury on April 16, 2009.

It is true that if an industrial injury aggravates or accelerates a pre-existing non-industrial condition so as to cause a need for treatment, the claimant has sustained a compensable injury and respondents are liable for treatment caused by the aggravation Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990). However, as noted above, 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, supra.
Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, supra. Here the ALJ explicitly determined that the treatment for his lower back or the meniscal tears in the claimant’s knees were not consistent with the alleged mechanism of the industrial injury. Again, as in the case of the knee condition the ALJ found that the claimant’s lower back condition was not causally related to the mechanism of the industrial injury. In our opinion, this is a sufficient ground to deny the request for medical benefits associated with the claimant’s claimed back injury. Once again, because this determination is supported by substantial evidence we are bound by it. Section 8-43-301(8).

Moreover, while it is true that the ALJ did not explicitly discuss potential aggravation of a preexisting condition, the claimant had not argued before the ALJ that he suffered an aggravation of a pre-existing condition. We have reviewed the claimant’s

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post-hearing Position Statement and find no reference to a pre-existing condition. Instead, the claimant argued that people with a torn meniscus or disc problems experience pain and the claimant denied any history of knee pain or back pain prior to the industrial injury. Therefore, he argues, his conditions must have been caused by the industrial accident. An argument that he suffered an aggravation of a pre-existing condition would have been inconsistent with the claimant’s position that the torn meniscus and disc problems were a direct result of the industrial injury. We are not persuaded to remand the matter for it to be retried now on a theory of an aggravation of a preexisting condition. Further because the claimant failed to raise this argument before the ALJ it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994).

IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________

Curt Kriksciun

____________________________________

Thomas Schrant

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ALFONSO VARGAS, DENVER, CO, (Claimant).

CENTRAL MASONRY, INC., LITTLETON, CO, (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., 7 DENVER, CO, (Insurer).

PEPE J. MENDEZ ASSOCIATES, P.C., Attn: PEPE J. MENDEZ, ESQ., DENVER, CO, (For Claimant).

RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CONNIE HULSE, ESQ., DENVER, CO, (For Respondents).

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