IN THE MATTER OF THE CLAIM OF GEORGE B. SONGSTAD, Claimant, v. DAWN FOODS, Employer, and FIDELITY GUARANTY INSURANCE COMPANY, Insurer, Respondents.

W.C. Nos. 4-780-380 4-782-184.Industrial Claim Appeals Office.
July 9, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated February 10, 2010, that determined the claimant suffered a compensable injury. We affirm.

The claimant was struck by an automobile on April 11, 2008. As a result, the claimant suffered various injuries including fractures of his left knee. The claimant’s medical treatment for the accident included surgery on his left knee.

The claimant worked in the maintenance department for the employer. On December 5, 2008, the claimant felt a pop or a twinge in his left knee as he was standing on a ladder lifting a heavy pressure release valve over his head in an attempt to install it. The claimant sought benefits contending that he twisted his knee while on the ladder. The claim was heard before the ALJ on a number of issues including compensability.

The ALJ found that the claimant’s work exposure worsened the claimant’s preexisting symptomatic left knee condition. The ALJ concluded that the claimant had established that he sustained a compensable injury to his left knee on December 5, 2008. The ALJ awarded certain temporary disability and medical benefits. The respondents bring this appeal contending the ALJ erred in finding the claimant suffered a compensable injury.

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The respondents contend that the ALJ’s order finding the claimant suffered a compensable injury on December 5, 2008 is not supported by applicable law or by substantial evidence and must be reversed. We are not persuaded to interfere with the ALJ’s order.

To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that he suffered a left knee injury that arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S.; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ.

Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

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 and disability 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, when a claimant experiences symptoms while at work it is for the ALJ to determine whether subsequent need for treatment was caused by an industrial aggravation of a pre-existing condition or by the natural progression of the pre-existing condition. The mere experience of symptoms at work does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Resolution of that issue is also one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).

Here, the ALJ found that the claimant’s pre-existing symptoms significantly increased after the December 5, 2008 incident. The ALJ made the following findings of fact in support of that determination. Dr. Ramos testified that the claimant, as of November 10, 2008, was essentially finished with care for the April 11, 2008 automobile accident. Ramos Depo. at 10-11. The claimant’s pre-existing symptoms significantly increased after the incident on December 5, 2008. Tr. at 53-54 57-58 Ramos Depo. at 11-13. The claimant saw the physician assistant (PA) for Dr. Ramos on December 10, 2008 using crutches and wearing a brace on his knee. Exhibit 8 at 44-45. The PA

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prescribed narcotic pain medication and took the claimant off work. Exhibit 8 at 45. The PA opined that the claimant’s left knee pain had been exacerbated by the work injury of December 5, 2008. Exhibit 8 at 44. The claimant saw Dr. Ramos on December 17, 2008. Dr. Ramos noted that the claimant had been doing well until December 5, 2008, but then required a knee brace and crutches again. Exhibit 8 at 46-47. Dr. Ramos opined that the claimant suffered a new injury to his left knee between November 10, 2008 and December 10, 2008. Ramos Depo. at 21-22.

The ALJ noted that the claimant was not taking prescription pain medications prior to December 5, 2008 nor was he using crutches or having lateral pain complaints in his left knee. Ramos Depo. at 8 10 12. The claimant was tapering off the physical therapy visits and Dr. Ramos testified that he was getting ready to discharge the claimant from care. Ramos Depo. at 21. The ALJ determined that the claimant’s work exposure worsened his pre-existing symptomatic left knee condition.

The respondents relied upon the opinions of Dr. Watson. Dr. Watson opined that the claimant’s work exposure did not cause a new injury based on the medical reports. Dr. Watson testified that the work exposure did not cause the activation of a previously asymptomatic condition because the claimant was still in treatment at the time of the injury. Dr. Watson opined that the work injury did not worsen a pre-existing symptomatic condition based on the treatment the claimant received following December 5, 2008 because the treatment was identical to the treatment prescribed on November 10, 2008. The ALJ found the opinions of Dr. Watson to be less persuasive than the opinions of Dr. Ramos. The respondents argue that the opinions of Dr. Watson were persuasive and those of Dr. Ramos were unpersuasive. However, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Because the ALJ’s determination in this respect is discretionary, we may only disturb the ALJ’s order if it exceeds the bounds of reason, it is wholly unsupported by the evidence or is contrary to applicable law See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). In our opinion the weight and credibility assigned by the ALJ to the medical experts does not exceed the bound of reason. Therefore, we are not persuaded to interfere with the ALJ’s order.

The respondents contend that the ALJ erred in relying on the claimant’s testimony. The respondents contend that the claimant’s testimony is biased and incredible as a matter of law. The respondents contend that the claimant’s evidence, which included his own testimony, did not rise to the level of a preponderance of evidence when weighed against the testimony of two employer witnesses.

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The respondents draw our attention to the following testimony of its maintenance manager. Tr. 76. The maintenance manager testified that he was working with the claimant on December 5, 2008 but the claimant did not tell him about an injury until approximately December 7, 2008 when he reported the alleged injury. There was no ladder in the location where the claimant was working. If the claimant had attempted to use a ladder in the area in question, he would have fallen down a flight of stairs. Prior to the claimed industrial injury, the claimant would complain about climbing stairs and the use of ladders due to injuries sustained in the car accident. The maintenance manager explained that the valve the claimant was working on, at the time of the alleged injury, was approximately 6 feet off the ground, in contrast to the claimant’s testimony that the valve was 10 feet off the floor.

The ALJ found the claimant’s testimony concerning his use of a ladder to install the valve to be more credible and persuasive than the testimony of the employer witnesses. The ALJ made the following findings of fact with record support. The ALJ found that the valve at the connection site was approximately seven feet above the ground based on photos taken of the area. Exhibit J. The lead man testified that he is 6’3” tall and the top of his head reached the bottom of the valve. TR. at 97. The ALJ also noted that the claimant is shorter. Tr. at 97. The ALJ concluded that the claimant probably could have reached the valve at the connection site with his arms stretched above his head. However, without the ladder he could not comfortably replace the valve. In our view, these are plausible inferences drawn from the record and we must defer to them. Se Wilson v. Industrial Claim Appeals Office, supra.

The respondents also presented testimony from the claimant’s lead person on the night shift. Tr. at 91-92. The lead person testified that on December 5, 2008 the claimant asked him for help in installing a valve, but that the claimant did not tell him he was injured and that the claimant was not limping or having any problems walking. The lead person testified that there were no ladders in the area around the valve. While this evidence is relevant, we cannot say that it rebuts by such hard, certain evidence the claimant’s testimony so that it would be error as a matter of law to credit that testimony relied upon by the ALJ. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).

The respondents, in support of their contention that the claimant’s testimony regarding the manner of his alleged December 5, 2008 injury was not credible, offered evidence on the weight of the valve. The claimant testified that the valve weighed approximately 70 pounds in contrast to the employer witness who testified that the valve in question only weighed 52 pounds. However, the ALJ noted that the valve had pipes attached to it when the claimant lifted it and the employer witness did not consider whether the valve had pipes connected to it when determining the weight. Tr. at 88. In any event, whether the valve weighted 52 or 70 pounds it is a reasonable inference that

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the claimant would use a ladder to install it rather than attempt installation with his arms stretched above his head.

The respondents essentially request that on review we reweigh the evidence. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and we decline the claimant’s invitation to do so Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).

On review the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Because here, in our view, substantial evidence supports the ALJ’s determination we must uphold that decision. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).

IT IS THEREFORE ORDERED that the ALJ’s order dated February 10, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciu

______________________________ Thomas Schrant

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GEORGE B SONGSTAD, ARVADA, CO, (Claimant).

DAWN FOODS, DENVER, CO, (Employer).

FIDELITY GUARANTY INSURANCE COMPANY, Attn: COLLEEN SULLIVAN, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer).

LAW OFFICES OF DARRELL S ELLIOTT, Attn: ROBERT F. JAMES, ESQ., DENVER, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: ILENE FELDMEIER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).