W.C. No. 4-472-327Industrial Claim Appeals Office.
August 16, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant sustained a compensable injury and awarded medical and temporary disability benefits. The respondents contend the ALJ’s finding that the claimant sustained an injury caused by her employment is unsupported by the evidence. We affirm.
The claimant worked as a “flagger” on a highway construction crew. In this job the claimant held a sign in her left hand for approximately 12 to 12 ½ hours per day. The sign was connected to a pole which rested on the ground.
Approximately two weeks prior to July 24, 2000, the claimant began to experience stiffness in her neck with pain radiating into her left arm and elbow. On July 24 the claimant reported an injury to her supervisor, although she stated that she was uncertain whether her symptoms were work-related or from “sleeping wrong.”
On July 24 the claimant was treated by Dr. Wolkov, who diagnosed tendinitis and muscle spasm. Dr. Wolkov’s notes recite a history of “stiff neck and sore shoulder from holding sign/flag,” but do not mention any injury connected with sleep. On August 29, 2000, Dr. Wolkov authored a report stating that it was “possible that the injury could have arisen from [the claimant’s] job,” but his opinion was dependent on the history given by the claimant. On November 28, 2000, in response to written questions submitted by claimant’s counsel, Dr. Wolkov opined it was “likely that [the claimant’s] position as a fulltime time flagger, which required her to hold a flagging pole in a mostly static position, with her left arm, for 12 hour a day shifts, caused the symptoms described in [Dr. Wolkov’s] office notes.”
The claimant was also treated by Dr. Klaw on August 8, 2000, and Dr. Chamberland on August 14 and August 28, 2000. Dr. Klaw removed the claimant from work, and by August 28 Dr. Chamberland returned the claimant to modified duty involving limited use of the left arm. Both of these physicians opined the claimant’s symptoms were work-related.
The ALJ found the “medical evidence supports claimant’s history of the injury and consistently indicates that claimant’s injury resulted from her job duties as a flagger.” The ALJ also found the totality of the evidence supports a finding the claimant’s condition was caused by her employment despite the fact the claimant mentioned the possibility that her symptoms might relate to “sleeping wrong.”
On review, the respondents contend substantial evidence does not support the ALJ’s finding the claimant sustained an injury caused by her employment. The respondents assert the medical evidence cited by the ALJ was “speculative” and predicated on incorrect assumptions concerning the claimant’s job duties and medical history. The respondents also contend claimant’s credibility “has to be questioned” because of her statement to the supervisor and because the claimant was not certain what caused her condition. We find no error.
The respondents correctly state the claimant was required to prove by a preponderance of the evidence that she sustained an injury “proximately caused by an injury or occupational disease arising out of and in course of” her employment. Section 8-41-301(1)(c), C.R.S. 2000. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because proof of causation is a factual issue, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2000. 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 record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Where, as here, the record contains expert medical opinion concerning causation, it is for the ALJ to assess the weight and credibility of such evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). It is true that expert medical opinion does not constitute substantial evidence if it is based on assumptions at variance with the actual facts established during the hearing. High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981). However, if the record reveals a medical expert’s opinion is based on a less than complete knowledge of the claimant’s medical history the expert’s opinion is not automatically invalidated. Rather, it is for the ALJ to assess the impact of this deficiency in judging the overall credibility of the expert’s opinion. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). Neither is an expert’s opinion invalid simply because it contains some degree of inconsistency. To the contrary, the ALJ may resolve the inconsistency by crediting only part of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents’ argument notwithstanding, the ALJ was not obliged to discredit the medical experts’ opinions because they were at variance with an established fact. First, we note the claimant testified that she advised Dr. Wolkov of her concern that “sleeping wrong” might have caused her symptoms. (Tr. p. 26). Thus, the ALJ need not have assumed that Dr. Wolkov was unaware of this issue, even though there is no mention of it in his notes. In any event, the opinions of the medical experts were not based on an assumption at variance with an established fact. Indeed, there was no factual determination that the claimant “slept wrong,” or that “sleeping wrong” could cause the claimant’s condition. Consequently, even if the claimant did not mention to the physicians her concern about “sleeping wrong,” the incomplete medical history went to the weight of their testimony. The ALJ explicitly resolved this credibility issue in favor of the claimant.
Similarly, the expert medical opinions were not invalid because they were based on the incorrect assumption the claimant “held the sign in the air” rather than resting it on the ground. First, the claimant testified she told the physicians she held the sign on the ground (Tr. p. 31). In any event, it does not appear that the physicians predicated their opinions on whether the claimant held the sign up or rested it on the ground. Further, as the ALJ found, all of the physicians opined that claimant’s condition was related to her employment as a flagger. Thus, it may be reasonably inferred that the physicians were familiar with the requirements of the job.
Finally, we note the respondents failed to present medical evidence tending to support their contention that “sleeping wrong” and “holding the sign in the air” were significant factors in determining the cause of the claimant’s condition. In the absence of such evidence, the ALJ was certainly entitled to credit the opinions of the claimant’s experts that the job duties were sufficient to cause the injury.
Next, the respondents assert that Dr. Wolkov’s opinion was “speculative” because he stated that it was “possible” the claimant’s job duties caused the injury. However, in response to the letter authored by claimant’s counsel dated November 28, 2000, Wolkov stated it was “likely” that the claimant’s job caused the injury. The ALJ recognized this inconsistency and resolved it in favor of the claimant. (Finding of Fact 9 and Conclusion of Law 1). Consequently, the ALJ did not err in relying on the opinions of Dr. Wolkov.
The respondents also assert the claimant’s testimony is not credible because she mentioned to her supervisor that “sleeping wrong” might have caused the injury, and because the claimant testified she was not certain what caused the injury. However, neither of these matters was fatal to the claimant’s credibility. The claimant testified that holding the sign was sufficient to elicit the symptoms of her condition. (Tr. pp. 14, 42). Further there was no legal requirement that the claimant be able to identify the cause of her condition. To the contrary, determination of the cause of the injury was a factual issue for the ALJ based on his review of all the relevant circumstances and evidence. See Savio House v. Dennis, 665 Colo. App. 141 (Colo.App. 1983).
Insofar as the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 7, 2001, 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. 2000. 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 August 16, 2001 to the following parties:
Denise McCracken, 8009 6075 Road, Olathe, CO 81425
San Juan Construction, Inc., 588 Spring Creek Rd., Montrose, CO 81401-3328
Risk Enterprise Management, P. O. Box 6500, Englewood, CO 80155
David B. Mueller, Esq., 101 S. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy