W.C. No. 4-821-807.Industrial Claim Appeals Office.
June 20, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated December 16, 2010 that denied his claim for workers’ compensation benefits. We affirm.
Several of the ALJ’s findings of fact are summarized as follows. The claimant worked as an automotive technician for the respondent employer from February 1998 through July 6, 2009. His job duties were physically demanding. The claimant underwent back surgery in 1996. In October 2005 a doctor examined the claimant and diagnosed various back ailments. The claimant did not indicate that his condition was related to work. The claimant’s condition worsened and required surgery in July 2009. The claimant’s condition was diagnosed as degenerative disc disease and stenosis. The claimant took FMLA leave for the surgery. The surgery did not resolve the claimant’s back problem, and the employer discharged the claimant when he exhausted his FMLA leave. The claimant’s personal health insurance carrier denied coverage for a second surgery and the claimant subsequently filed workers’ compensation claim on April 8, 2010. The claimant indicated July 7, 2009 as his date of injury.
The claimant was aware of the employer’s policies for reporting injuries and incidents arising at work and had ample time to report a work-related connection to his symptoms, but failed to do so. Instead, the claimant denied any connection of his condition with work and did not indicate his condition was related to work until his private carrier denied surgery. Further, the claimant did not file a claim until after some months following the termination of his employment.
Page 2
The ALJ credited Dr. Larson’s opinion that the claimant suffered from degenerative disease of the lumbar spine that was not caused by his employment. The ALJ did not find credible the claimant’s testimony of a work related cause for his condition. Thus, the ALJ concluded that the claimant’s back condition was the natural progression of a pre-existing condition not altered by his employment. The ALJ therefore denied the claim for benefits.
The claimant argues that the ALJ erred in determining that the claimant was “not credible in his description of events.” The claimant offers an alternate explanation for the claimant’s actions and inaction. However, the ALJ could properly determine that the claimant’s testimony was not credible because he did not contemporaneously report events to co-workers, supervisors, “or anyone else” at the respondent employer’s “despite full knowledge of the employer’s reporting policies.” The ALJ could also rely on the claimant’s failure to mention the alleged incidents in contemporaneous medical reports and the claimant’s failure to file a claim “until long after” his employment ended. Order at 4, ¶ 2. The claimant asserts that there is no statutory requirement that work injuries be reported to co-workers and that it is only required that the claim be filed within two years after the injury pursuant to § 8-43-103(2), C.R.S. However, the ALJ is not restricted to statutory requirements for filing claims when making credibility determinations regarding the claimant’s testimony. The ALJ is free to consider conduct that is inconsistent with that one might reasonably expect when a worker is injured on the job. See Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684, 687 (Colo. App. 2008) (in weighing credibility of testimony, ALJ can consider its reasonableness or unreasonableness, consistency or lack of consistency, and contradiction or support by other evidence).
As the claimant asserts, it appears from the record that the lack of medical documentation and the timing of the claimant’s reporting may have first been suggested in arguments made by the respondents. Respondents’ Position Statement at 5. Nonetheless, the discrepancies described by the ALJ in his order are reasonable inferences from evidence in the record. The claimant asserts that he filed his claim soon after learning from a physician that his condition was likely due to work activities as described in the claimant’s testimony, but we may not reweigh the evidence in the claimant’s favor. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993).
The claimant argues that the ALJ erred by crediting Dr. Larson’s opinions because Dr. Larson failed to obtain an adequate history of the mechanism of the injury as required by the Medical Treatment Guidelines, Workers’ Compensation Rules of Procedure, Rule 17, Exhibit 1 (C)(1)(a)(i). We do not find where the claimant made this assertion to the ALJ. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo. App. 1997) (issue not asserted before ALJ not preserved for appeal). In any event, the claimant’s assertion goes to the
Page 3
weight to be afforded Dr. Larson’s opinions and we find no error in the ALJ’s decision to credit Dr. Larson’s opinions. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002) (weight and credibility to be assigned expert testimony is matter within ALJ’s discretion). Furthermore, there is record support for Dr. Larson’s opinions that were credited by the ALJ. Tr. at 84-87; Exhibit D at 7-8.
The claimant asserts that the ALJ failed to determine whether the claimant’s working conditions contributed to his disability. If an industrial injury aggravates or accelerates a pre-existing condition so as to cause a need for treatment, the treatment is compensable Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo. App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986). Under § 8-40-201(14), C.R.S., the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree-the disability for which compensation is sought Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993). The ALJ sufficiently articulated the bases for establishing either an accidental injury or an occupational disease. Order at 4, ¶¶ 1, 3-4. Moreover, the ALJ was persuaded that the claimant’s condition was the natural progression of a pre-existing condition that was not altered by his employment. Order at 5, ¶ 5.
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. § 8-43-301(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). 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 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 under the substantial evidence standard 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 solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d. 1182 (Colo. App. 1990). The ALJ’s findings are supported by substantial evidence and we find no basis for disturbing the ALJ’s determination that the claimant did not establish a compensable accidental injury or occupational disease.
Page 4
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
Page 5
PHIL LONG DEALERSHIPS, COLORADO SPRINGS, CO, (Employer).
WESTAMERICA INSURANCE, Attn: STACY KIMMELL, DENVER, CO, (Insurer).
STEVEN U. MULLENS, PC, Attn: PATTIE J. RAGLAND, ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: DOUGLAS A. THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
Page 1