W.C. No. 4-364-919Industrial Claim Appeals Office.
July 2, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied and dismissed her claim for workers’ compensation benefits. The claimant argues the evidence compelled the ALJ to find she sustained a compensable injury on August 1, 1996, when she turned her head while talking on the telephone. We affirm.
The claimant testified that on August 1, 1996, she was sitting at her desk talking on the telephone. She stated that when she turned to her left to look at a computer screen she felt “immediate pain in my neck, through my right shoulder, down my arm and down into my thumb and first finger.” (Tr. p. 6). The claimant argued to the ALJ that this incident constituted a compensable aggravation or acceleration of a pre-existing degenerative disc condition.
However, the ALJ found the evidence of “a specific injury on or about August 2, 1996 resulting in the onset of” the claimant’s symptoms was not persuasive. In support, the ALJ noted the claimant was examined by the treating physician on August 2, 1996, and reported “a 1-week history of right thumb ulnar side numbness, in the distal tip” without any mention of specific trauma. The August 2 note also stated the claimant’s condition “is not painful and she has not developed any weakness.”
The ALJ also found the claimant suffers from a degenerative disease of the cervical spine which predated the alleged injury, and was not aggravated, worsened, or accelerated by the claimant’s employment. In support of this determination, the ALJ credited the opinions expressed by Dr. Winkler, and resolved all conflicts in the evidence in favor of the conclusion that the claimant’s condition did not arise out of employment.
On review, the claimant contends the evidence establishes that she sustained a compensable injury because the “sudden and tangible happening of a traumatic nature” produced an “immediate and prompt onset of symptoms which was factually caused by the claimant’s work.” In support of this proposition the claimant relies on the testimony of her treating physician, her own testimony, and alleged contradictions in Dr. Winkler’s testimony. We perceive no error.
To prove a compensable injury the claimant was required to establish a causal relationship between the alleged industrial injury and the claimed disability and need for treatment. Section 8-41-301(1)(c), C.R.S. 1998; Cooper v. Industrial Claim Appeals Office, ___ P.2d ___(Colo.App. No. 98CA1343, March 18, 1999). The questions of whether the claimant proved a compensable injury and its causal connection to the claimed benefits were issues of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Because the issues are factual nature, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In this regard, the weight and credibility to be assigned expert medical testimony was a matter within the ALJ’s province as the fact-finder Rockwell International v. Turnbull, supra. To the extent any expert’s testimony contained inconsistencies, the ALJ could resolve them by believing part or none of the testimony. El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993). Testimony not exclusively credited is presumed to have been implicitly discredited. Cooper v. Industrial Claim Appeals Office, supra.
We do not dispute the claimant’s legal assertion that a relatively minor work-related event which aggravates or accelerates the development of a pre-existing condition constitutes a compensable injury. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the ALJ determined as a matter of fact that the claimant did not prove she sustained an injury on August 1. To the contrary, the ALJ found the treating physician’s office note from August 2 is inconsistent with the claimant’s description of the alleged injury. The ALJ could logically infer that if the claimant actually sustained injury to her neck on August 1 the event would have been recorded in the August 2 office note. Moreover, Dr. Winkler’s testimony explained how the claimant could have developed her symptoms as a result of the pre-existing degenerative condition without the intervention of the alleged industrial injury. It is true that some evidence in the record would support contrary findings and conclusions, but we decline to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the evidence.
It is also true, as the claimant asserts, that Dr. Winkler’s testimony and reports contain some statements tending to support the claimant’s theory of the case. However, the ALJ resolved the inconsistencies in Dr. Winkler’s testimony against the claimant, and we may not interfere with the ALJ’s decision.
Insofar as the claimant makes other arguments they are purely factual in nature, and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 14, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 2, 1999 the following parties:
Judith L. Walker, P.O. Box 587, New Castle, CO 81647
Aspen Valley Hospital, Patricia Pier, 0401 Castle Creek Rd., Aspen, CO 80611
TIG Fairmont Insurance Company, PO Box 17005, Denver, CO 80217
Fremont Compensation Insurance Group, 1471 Shoreline Dr., Ste. 200, Boise, ID 83702
Donald J. Kaufman, Esq., 401 23rd St., Ste. 302, Glenwood Springs, CO 81601 (For Claimant)
Royce W. Mueller, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For TIG Respondents)
Margaret Keck, Esq., 1777 S. Harrison, Ste., 1110, Denver, CO 80210 (For Fremont Respondents)
BY: A. Pendroy