W.C. No. 4-535.Industrial Claim Appeals Office.
September 24, 2003.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant sustained a compensable cervical injury and awarded medical benefits. We affirm.
For 16 years, the claimant worked in the employer’s “pack-off” department, where the claimant was required to perform repetitive lifting, bending and turning to put meat in boxes. In 1999 the claimant started working in the “freezer” department where he was required to load 6 to 10 trucks per day with boxes of meat. The ALJ found the freezer job required repetitive bending and lifting from ground level to 8 feet high, and twisting the head with each lift over the shoulders to a maximum height of 8 feet.
The claimant testified that in 1986 he began experiencing tension headaches. The claimant sought treatment off and on through October 16, 2000, when Dr. Mazowiecki noted “marked spasms” of the neck.
The claimant’s last day of work was May 11, 2001, when he suffered a severe headache. On March 21, 2002, the claimant reported a work-related injury and alleged “all the time I spent in pack off wore out my neck.” (Respondent’s Exhibit K).
An MRI taken of the cervical spine in October 2001 revealed spondylosis, particularly at C4-C5. In January 2002, the claimant underwent cervical surgery to relieve the headaches.
On July 15, 2002, Dr. Hughes performed an independent medical examination and diagnosed “degenerate spondylosis of the cervical spine probably stemming from repetitive head bending at work.” In contrast, Dr. Lesnak opined the claimant’s cervical spine disease was “merely part of the natural aging process and completely unrelated to any specific occupational disease.”
Crediting the opinions of Dr. Hughes, the ALJ found the claimant suffered an occupational disease caused by an aggravation of the preexisting cervical spondylosis. Therefore, the ALJ awarded medical benefits.
On review, the respondent contends the claimant never alleged any neck injury from his work in the freezer. The respondent also contends it defended the claim on the sole allegation that the claimant suffered an injury from his work in the pack-off department. Consequently, the respondent contends it’s right to advance notice of the legal and factual issues to be litigated were violated by the ALJ’s finding that the claimant’s occupational disease was caused by his work in the freezer. We perceive no due process violation.
A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. Section 8-41-301(1)(c), C.R.S. 2002. The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury, if an industrial 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); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). The claimant sustains an industrial injury in the nature of 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. 2002.
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002. 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 conflicting evidence or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard it is the ALJ’s sole prerogative to assess the weight and sufficiency of the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Contrary to the respondent’s contentions, the ALJ did not expressly find that the claimant’s neck injury was caused by his repetitive activities in the “freezer.” The ALJ found the claimant’s employment duties in the pack-off and freezer departments required repetitive movements of the head. The ALJ also found the claimant proved he suffered an aggravation of degenerate spondylosis of the cervical spine, “as a direct result of his employment,” which was disabling effective May 11, 2001. However, the ALJ did not specifically determine that the loading activities in the freezer were the cause of the injury.
In any case, we know of no requirement and the respondent cites no statute or rule in support of its contention that the ALJ is precluded from considering evidence of potential causative factors for the claimant’s condition beyond the causative factors alleged by the claimant in a letter to the employer. Indeed, where the claimant establishes prima facie evidence of an occupational disease, the burden of proof shifts to the respondent to prove a nonindustrial cause of the injury. Section 8-40-201(14); Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). Consequently, the statute contemplates the ALJ’s consideration of numerous possible causative factors.
Further, the claimant is not required to understand the exact mechanism of the injury to prove a compensable injury. To the contrary, the ALJ may find a compensable injury where the claimant presents facts and circumstances which indicate within a reasonable probability that the disease resulted from or was precipitated by the employment activities, so that the ALJ may infer a causal relationship between the disease and the need for treatment, even if the actual cause is “shrouded in mystery.” See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3
(1968).
Here, the claimant initially claimed his neck injury was caused by his work in the pack-off department. However, the respondent cannot deny knowledge that the claimant was working in the freezer department during the latter part of his employment. Further, the Respondent’s Hearing Exhibit B contains a clinic note from Dr. Viola dated April 12, 2002, which states that the claimant’s cervical pain “worsens if [the claimant] lifts anything over 20 pounds with his arms.” In addition Respondent’s Hearing Exhibit C contains a medical report dated May 21, 2001, from Dr. Hicks, which states the claimant “is lifting heavy boxes and sometimes that makes him shoulders hurt, which can be contributing to the pain in his shoulders/neck/occiput.” Accordingly, the records submitted by the respondent contain evidence from which the ALJ could reasonably infer that the claimant’s work in the “freezer” was a contributing factor to the claimant’s injury. Under these circumstances, we are not persuaded the respondent was unaware as of the hearing on December 11, 2002, that the ALJ might consider whether the claimant’s injury was caused by his loading activities in the freezer department.
Moreover, the respondent did not object to the claimant’s testimony concerning his duties in the freezer. Neither did the respondent object to the claimant’s statement that his condition worsened during his work in the freezer. (Tr. pp. 7, 12, 14). It follows, the issue of whether the claimant’s injury was caused by his job duties in the freezer department was tried by consent and the respondent waived any objection to the ALJ’s consideration of this evidence. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Cox v. Bertsch, 730 P.2d 889
(Colo.App. 1986); C.R.E. 103(a)(1) (error may not be predicated on ruling which admits evidence unless a timely objection to strike the evidence appears of record).
We also note that there is substantial evidence in the record to support the ALJ’s finding of a causal connection between the employment and the claimant’s cervical condition. Dr. Hughes opined that, as described by the claimant, the work-related activities in the pack-off department:
“may substantially accelerate the development of degenerative disease of the cervical spine including degenerative disc disease and development of foraminal stenosis secondary to facet joint arthropathy. In scientific studies analyzed by the National Institute of Occupational Safety and Heath this particular type of activity may substantially aggravate the degenerative process in the cervical spine. Given the information presently available to me I believe that [the claimant’s] cervical spine condition is an occupational condition.”
As argued by the respondent, Dr. Hughes admitted he did not review the employer’s health service records, and recommended the employer’s health service records be obtained and reviewed to verify the claimant’s history of seeking health service treatment for cervical spine pain.
However, the ALJ is free to credit all, part, or none of an expert’s testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Further, evidence an expert’s opinions were based on an incomplete medical history goes to the weight not the admissibility of the expert’s testimony. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
As we read the ALJ’s order, he credited Dr. Hughes testimony for the proposition that the claimant’s work activities, if accurate, were the type of activity that could accelerate the claimant’s preexisting degenerative disc disease. (Finding of Fact 8). The ALJ then implicitly credited the claimant’s testimony that his employment did, in fact, require the type of repetitive head movements Dr. Hughes opined could aggravate a preexisting degenerative disc disease. Based on this evidence the ALJ could, and did, reasonably infer that the employment probably aggravated the claimant’s preexisting degenerative disc disease and caused the claimant’s subsequent disability and need for treatment. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Further, the ALJ’s findings support the conclusion the claimant suffered a compensable cervical injury in the nature of an occupational disease. H H Warehouse v. Vicory, supra. Therefore, it is immaterial whether Dr. Lesnak’s opinions, if credited, might support a contrary result. F.R. Orr Construction v. Rinta, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 22, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 24, 2003 to the following parties:
Dwight Walker, 218 Landmark, Ft. Morgan, CO 80701
Deb Carlock, Excel Corporation, C. S. 4100, Ft. Morgan, CO 80701
Margaret Johnson, Crawford Company, 2850 McClelland, #1600, Ft. Collins, CO 80525
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondent)
BY: A. Hurtado