IN THE MATTER OF THE CLAIM OF JAMES WILSON, Claimant, v. TIRE DISTRIBUTION SYSTEMS, Employer, and TRAVELERS INDEMNITY COMPANY, Insurer, Respondents.

W.C. No. 4-771-877.Industrial Claim Appeals Office.
September 22, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Krumreich (ALJ) dated May 5, 2010, that found a claim for a January 4, 2008 accident to be compensable and ordered the insurer to pay the medical expenses for treatment provided by a chiropractor. We affirm.

The claimant suffered a compensable injury on September 18, 2007 when a tire the claimant was inflating exploded and blew his right hand back. This claim was identified as W.C. No. 4-736-136 (September 18, 2007 accident). The respondents admitted liability, but based on a positive drug screen test taken after the accident reduced the claimant’s compensation benefits by 50 percent under § 8-42-112.5.

The claimant filed a second claim against the same employer and insurer alleging he suffered a second injury on January 4, 2008. This claim was identified as W.C. No. 4-771-877 (January 4, 2008 accident). The claimant testified that he suffered the accident on January 4, 2008 as follows. He was driving a truck to deliver a large tire to a job site at Fort Carson. The truck was subject to inspection prior to entering the Fort. The claimant was required to open the hood of his truck for inspection. As he did this the hood struck him on the head and a glancing blow to the right shoulder knocking him to the ground where he fell on his outstretched right arm.

The respondents filed a Final Admission of Liability for a period of temporary total disability and for temporary partial disability benefits under the claim for the September 18, 2007 accident. However, the respondents denied the compensability of the January 4, 2008 accident.

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At the time of the hearing the respondents essentially presented two arguments in support of their defense to the compensability of the January 4, 2008 accident. The respondents first argued that the claimant fabricated the January 4, 2008 accident in an attempt to avoid the consequences of having his benefits reduced by 50 percent in connection with his claim for the admitted injury of September 18, 2007. The ALJ found the claimant credibly testified about the accident of January 4, 2008 and his testimony was consistent with the histories given to his treating physicians.

The respondents’ second argument was that because the claimant was already under treatment for the same conditions and injuries prior to the accident of January 4, 2008 as after, no compensable injury occurred. However, the ALJ was persuaded that the evidence established that the accident of January 4, 2008 aggravated the previous injuries and caused new conditions that were not present prior to the January 4, 2008 accident.

The ALJ determined that the claimant had proven by a preponderance of the evidence that he sustained a compensable injury on January 4, 2008 that aggravated his previous hand and wrist injuries from the September 18, 2007 injury and that caused further injury to his right elbow and shoulder necessitating surgery on June 2, 2009. The respondents filed a petition to review the ALJ’s order and raise four issues on appeal.

I.
The respondents first contend that the ALJ’s findings of fact concerning Dr. Ogrodnick’s testimony are erroneous and are not supported by substantial evidence. The respondents note that the ALJ found that Dr. Ogrodnick did not specifically examine the claimant’s right shoulder prior to January 2008 because he did not feel it was a major problem and first examined Claimant’s shoulder in March 2008. Finding of Fact 17 at 5. The respondents argue this is plain error because Dr. Ogrodnick did examine the claimant’ shoulder prior to January 2008. The respondents point to Dr. Ogrodnick’s report of December 4, 2007 and his testimony at his deposition. Exhibit H at 54; Ogrodnick Depo. at 8.

We note that in his December 4, 2007 report Dr. Ogrodnick assessed a right hand fracture, depression exacerbated by the injury and right elbow and shoulder myofascial pain. Dr. Ogrodnick also reported that the claimant demonstrated full right shoulder abduction and full rotator cuff strength. Exhibit H at 54. We further note that in his deposition Dr. Ogrodnick testified that he examined the claimant’s shoulder and elbow in November and December of 2007. Ogrodnick Depo. at 8. However in his deposition Dr. Ogrodnick also testified that that he never examined the claimant’s shoulder prior to the second injury of January 2008 and that if he had felt that the right shoulder was a major problem from the first injury he would have examined it. Ogrodnick Depo. at 16.

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The testimony from Dr. Ogrodnick may be seen as conflicting. Nevertheless, we may not substitute our judgment by reweighing the evidence in an attempt to reach inferences different from those the ALJ drew from the evidence. See Johnson v. Indus. Claim Appeals Office, 973 P.2d 624, 626 (Colo. App. 1997) (ALJ’s prerogative to evaluate evidence “extends to resolving the inconsistencies in a particular witness’ testimony”); Sullivan v. Indus. Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result) Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony). In our view it was within the province of the ALJ to weigh the medical evidence and the deposition testimony of Dr. Ogrodnick constitutes substantial evidence supporting the ALJ’s determination.

Moreover, Dr. Ogrodnick testified that the January 2008 accident was a separate injury distinct from the September 2007 injury. Ogrodnick Depo. at 11-12. Dr. Ogrodnick said that the January 2008 accident significantly aggravated the claimant’s shoulder or elbow. Ogrodnick Depo. at 13-14. The ALJ made a number of findings consistent with the opinions expressed Dr. Ogrodnick in his deposition. Finding of Fact 17 at 5. The essence of the ALJ’s findings concerning Dr. Ogrodnick’s opinion was that the doctor opined that the accident of January 4, 2008 significantly aggravated the claimant’s right elbow and shoulder. In our view, the record supports this determination.

II.
The respondents next contend that the ALJ’s findings of fact and conclusions of law regarding the superior labral tear from anterior to posterior (SLAP) tear or lesion was not supported by substantial evidence. The respondents contend that the ALJ’s conclusion that Dr. Bierbrauer and Dr. Castrejon both testified that the January 4, 2008 accident caused further injury to the claimant’s right shoulder in the nature of a SLAP lesion that was not presented prior to January 2008 was a misstatement of the evidence. Conclusion 35 at 9.

The respondents contend that contrary to the ALJ’s conclusion of law, Dr. Bierbrauer never testified nor opined that the SLAP lesion was caused by the January 4, 2008 accident. We note that the reports from Dr. Bierbrauer do not make mention of a SLAP lesion. Nor do we see in the testimony of Dr. Bierbrauer a direct mention of a causal connection of the SLAP lesion with the January 4, 2008 accident

However, although there may be, as contended by the respondents, no direct statement by Dr. Bierbrauer that the SLAP lesion was caused by the January 4, 2008 accident there is evidence in the record that, when put in context, supports the ALJ’s

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conclusion. Dr. Bierbraure in his testimony did opine that when he did a physical examination in January 2008 after the second accident there were changes in the claimant’s condition and he opined that the claimant had suffered a new injury. Tr. at 21 24. Dr. Bierbraure testified that prior to January 11, 2008 he had not made any recommendations that the claimant undergo a right shoulder MRI nor had there been any findings that the claimant had a SLAP lesion or tear. Tr. 22

Dr. Bierbraure testified that the SLAP tear lesion referenced in a physical therapy note of February 7, 2008 had not been present prior to January 2008. Tr. 40. Dr. Bierbraure also testified that he had read the MRI report done in February 2008 and that it had showed differences from his earlier examination and based on the MRI he would have recommended that the claimant proceed to the surgery that Dr. Walden had recommended. Tr. 37-38. The surgeries performed by Dr. Walden were consistent with the changes seen in the MRI report which occurred after the January 4 2008 accident. Castrejon Depo. at 20-24. In our view, Dr. Bierbraure’s testimony put in context does support the ALJ’s conclusion that Dr. Bierbrauer opined that the January 4, 2008 accident caused further injury to the claimant’s right shoulder in the nature of a SLAP lesion that was not presented prior to January 2008.

We are also not persuaded by the respondents’ contention that the ALJ committed reversible error in finding that Dr. Castrejon testified that the January 4, 2008 accident caused further injury to the claimant’s right shoulder in the nature of a SLAP lesion that was not presented prior to January 2008. Dr. Castrejon’s testimony includes the following. He was aware that the claimant was involved in two separate events that caused his injures. Castrejon Depo. at 5-6. The first event was September 18, 2007 and the second one occurred on January 4, 2008. Castrejon Depo. at 5-6. He treated the claimant for both injuries. Castrejon Depo. at 6. Dr. Castrejon explained, after being shown an evaluation of the shoulder made by a physical therapist, what a SLAP lesion is and that it would be consistent with the claimant’s description of what happened on January 4. 2008. Castrejon Depo. at 14-15. Further he opined that the January 4, 2008 injury caused injury to the claimant’s right shoulder consistent with the SLAP tear and the MRI findings that were later seen. Castrejon Depo. at 16. He referred the claimant to Dr. Walden. Castrejon Depo. at 19. He opined that the January 2008 incident caused a new injury and the need for the surgeries performed in June 2009. Castrejon Depo. at 24. In our view this is substantial evidence supporting the ALJ’s conclusions regarding the opinions of Dr. Castrejon.

III.
The respondents next contend that the ALJ erred in failing to resolve inconsistencies in the evidence, including but not limited to the inconsistent reports of injury upon which the experts relied in reaching their opinions. The respondents note

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that the ALJ relied upon the opinions of Dr. Castrejon and found that Dr. Castrejon testified that the claimant suffered a SLAP lesion consistent with the description of the accident of January 4, 2008. The respondents argue that Dr. Castrejon’s opinion was not based on the version of events described at the hearing by the claimant. We are not persuaded to interfere with the ALJ’s order.

The reports from Dr. Casterjon contain the following history. The claimant also sustained an injury to his right shoulder in January, 2008 when a semi hood flew up striking him and throwing him to the ground. At that time he reinjured his right elbow and wrist as he fell backward hyper-extending his right wrist and twisting his elbow. Exhibit 12 at 55. At the time of the hearing the claimant described the January 2008 accident as follows. The claimant went to grab the hood and pull it over and it hit him right across the head and down on his right shoulder and then he fell to the ground where he caught himself with his right hand. Tr. at 59-60. We are not persuaded that to the extent any differences exists in the description of the accident given at the hearing and given to Dr. Casterjon, such differences compel a conclusion that Dr. Castrejon’s opinion must be discredited. 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).

IV.
The respondents finally contend that the ALJ’s findings of fact and conclusions of law regarding chiropractic treatment are not supported by substantial evidence and the ALJ misapplied the burden of proof. We are again not persuaded that the ALJ committed reversible error.

The respondents argue that the ALJ determined that the respondents had failed to show that the treatment was not reasonable, necessary and related. From this the respondents contend that the ALJ misapplied the burden of proof because the burden was on the claimant to show that the treatment was reasonable and necessary. However, the respondents only cite a portion of one of the ALJ’s sentences. The ALJ found the following: “The treatment provided by Dr. Abercrombie was reasonable, necessary and related to the January 4, 2008 injury and the respondents had not presented persuasive evidence to the contrary.” We are not persuaded that the ALJ misapplied the burden of proof. In our view, the ALJ’s order demonstrates that the claimant had carried his burden to show that the chiropractic treatment was reasonable necessary and related.

The respondents further argue that the referrals by Dr. Castrejon for chiropractic care were causally related to the January 4, 2008 injury. As we understand the respondents’ argument they contend that the referral for care related to the September 18, 2007 claim not the January 4, 2008 claim and because the claimant stated at the outset of

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the hearing that he was not seeking any benefits for the September 18, 2007 accident that the ALJ erred in ordering payment for chiropractic care in this order.

The ALJ made the following findings regarding the insurer’s liability for medical expenses for the claimant’s treatment with Chad Abercrombie, D.C. Dr. Castrejon referred the claimant to chiropractor Abercrombie for treatment. The ALJ found the insurer liable for the treatment of Dr. Abercrombie under the January 4, 2008 claim.

As noted above, there is substantial evidence supporting the ALJ’s conclusions regarding the opinions of Dr. Castrejon that the January 4, 2008 accident caused further injury to the claimant’s right shoulder and that he treated the claimant for both injuries. The ALJ’s determination that the insurer is liable for the chiropractic treatment under the January 4, 2008 claim is a reasonable inference drawn from the record and thus binding on us Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). We have reviewed the respondents’ additional arguments and they do not alter our conclusions.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 5, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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JAMES WILSON, PEYTON, CO, (Claimant).

TRAVELERS INDEMNITY COMPANY, Attn: ANNA K. CURREY, DENVER, CO, (Insurer).

KENNETH J. SHAKESHAFT, C/O: SHAKESHAFT LAW FIRM, COLO SPRINGS, CO, (For Claimant).

THOMAS POLLART MILLER LLC, Attn: TRENT E. RINEBARGER, GREENWOOD VILLAGE, CO, (For Respondents).

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