IN THE MATTER OF THE CLAIM OF BRADLEY LOAN, Claimant, v. HERMOSA PARK, LLC, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. Nos. 4-719-076.Industrial Claim Appeals Office.
January 20, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated October 10, 2008 that denied his request for knee surgery. We affirm.

The ALJ’s findings are summarized as follows. The respondents admitted for an injury to the claimant’s right knee sustained on March 5, 2007 when he slipped and twisted his knee. Dr. Goodman performed an arthroscopy and partial medial meniscectomy. Dr. Goodman noted that the claimant had third degree chondromalacia of his medial femoral condyle. The claimant had preexisting problems with his right knee, including an injury about two months prior to his industrial injury and an arthroscopic procedure at age 12. A radiologist interpreted a MRI conducted after the claimant’s surgery on June 11, 2007 to reveal a tear of the medial meniscus. Dr. Lyons and Dr. Goodman recommended repeat arthroscopy and further excision of the claimant’s posterior medial meniscus. However, the respondents denied the request. Dr. Lindberg conducted an independent medical examination of the claimant and opined that such surgery was not needed for the claimant’s work-related injury. The ALJ credited Dr. Lindberg’s opinions, together with evidence regarding the claimant’s ability to walk and run, and determined that the additional surgery was not shown to be reasonable and necessary to cure and relieve the claimant from the effects of his industrial injury.

The claimant argues that the ALJ’s findings and the evidence upon which the findings are based are insufficient to support the ALJ’s determination that the claimant is not entitled to undergo surgery for the industrial injury to his right knee. The claimant also argues that the ALJ abused his discretion in rejecting the claimant’s assertion that arthroscopic knee surgery is reasonable and necessary to cure and relieve him from the

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effects of his work-related injury. We find no basis for disturbing the ALJ’s decision. See § 8-43-301(8), C.R.S. 2008 (enumerating grounds for the Panel to correct, set aside, or remand ALJ’s order).

The claimant asserts that all three physicians discussed by the ALJ in his order recognized that the requested knee surgery could benefit the claimant and that the respondents, therefore, should be required to pay for the surgery. However, the respondents are obligated to provide medical benefits to cure or relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 2008; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Furthermore, the respondents retain the right to dispute liability for specific medical treatment on grounds the treatment is not authorized or reasonably necessary to cure or relieve the effects of the industrial injury See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that the claimant bears the burden of proof to establish the right to specific medical benefits, and an admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990).

As the claimant notes, there was medical evidence that the claimant has a tear of his right medial meniscus for which arthroscopy is appropriate. Exhibits 16 and 19. However, the ALJ credited the opinions of Dr. Lindberg, an orthopedic surgeon who limits his practice to shoulder and knee surgery and has performed over 5,000 knee surgeries. Order at 2-3, ¶ 7; Lindberg Depo. at 4. Dr. Lindberg opined, among other things, that the claimant needs no more surgery for his work-related injury, that contrary to an MRI on February 1, 2008, it is doubtful that the claimant has a torn meniscus, and that the claimant’s pain, which is caused by chondromalacia/arthritis, would not be relieved by further surgery. Order at 3, ¶ 8; Exhibit C at 7; Lindberg Depo. at 10-14, 16-18, 21, 36. The ALJ also credited video surveillance of the claimant’s activities. Order at 3, ¶ 10; Exhibits J, L, and M. The ALJ concluded that the claimant had not sustained his burden to show that the requested surgery was reasonable and necessary to cure and relieve the effects of his work injury.

Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). We have no authority to substitute our

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judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, no transcript of the hearing has been provided and, therefore, we must presume that the ALJ’s factual findings are supported by the record Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).

The ALJ determined, with record support, that the claimant was not entitled to the requested knee surgery as a result of his industrial injury. We are bound by his determination under the circumstances.

IT IS THEREFORE ORDERED that the ALJ’s order dated October 10, 2008 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

BRADLEY LOAN, BAYFIELD, CO, (Claimant).

HERMOSA PARK, LLC, DURANGO, CO, (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ./MS ALESIA GILLIS, DENVER, CO, (Insurer).

THE SOIGNIER LAW FIRM, Attn: SHANNON M SOIGNIER, ESQ., DURANGO, CO, (For Claimant).

RUEGSEGGER SIMONS SMITH STERN LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents).

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