In the Matter of the CLAIM OF YACOUB ABDELFATTAH, Claimant, v. LOWE’S, and AIG, Employer, Insurer, Respondents.

W. C. No. 4-670-958.Industrial Claim Appeals Office.
February 1, 2007.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated August 18, 2006 that denied and dismissed the claimant’s claim for compensation. We affirm.

A hearing was held on the issues of the compensability of the claim, the claimant’s entitlement to medical benefits and temporary total disability benefits, and penalties for the employer’s failure to timely report the injury. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked as a manager-in-training at one of the employer’s retail lumber and hardware stores. On October 25, 2005, the claimant was moving pallets of rock salt when the pallet jack lodged in a groove in the floor, making it difficult to move. When the claimant attempted to dislodge the jack his left knee “gave out” and he experienced pain in his knee. After the incident the claimant told the zone manager, John Decker, that he had strained his left knee, but that his knee condition was the result of a previous injury and that he would seek treatment at the Veterans Administration Medical Center (the VA). The claimant had injured his left knee during military training in 1999, and had undergone arthroscopic repair of a torn meniscus. In August 2004 the claimant had consulted Dr. Winterton, who noted that the claimant reported “excruciating and debilitating” left knee pain. Dr. Winterton stated that the claimant was a candidate for arthroscopic debridement, partial lateral meniscectomy, and partial excision of a bone fragment. At that time the claimant wished to proceed with the surgery recommended by Dr. Winterton. On June 15, 2005, a surgeon, Dr. Martin, examined the claimant and reported that he had a “hard time” recommending any treatment because of the “relative lack of physical findings.” On October 6, 2005, the claimant consulted his personal physician, Dr. Sanders, who referred him to Dr. Young for a surgical consultation. After the incident involving the pallet jack on October 25th the claimant consulted with Dr. Whittie at the VA medical facility. He reported to her that he had experienced constant pain in his left hip for two years, and that the pain radiated into his left knee. He also reported that the left knee pain had increased when he attempted to move the jack. Dr. Whittie advised the claimant to keep his scheduled appointment with Dr. Young for a surgical consultation. Dr. Young then examined the claimant on November 1, 2005 and recommended that he wear a right heel lift to correct a discrepancy in the length of his legs. Dr. Young saw the claimant again on November 23rd, when the latter reported increased low back pain resulting from his use of the heel lift. Dr. Young provided some treatment and referred the claimant for diagnostic studies of his low back. He eventually referred the claimant to Dr. Donner, who performed low back surgery, which included a decompressive laminectomy at the L4-L5 levels of the lumbar spine, and a posterolateral fusion at that level and at L5-S1. On April 7, 2006, Dr. Sacha conducted an independent medical examination of the claimant at the respondents’ request. Dr. Sacha reported that the claimant’s then-current symptoms were caused by his preexisting back and knee problems and were unrelated to the incident with the pallet jack on October 25th. The ALJ expressly credited Dr. Sacha’s opinions as persuasive.

The ALJ weighed the competing evidence and concluded that the claimant had failed to carry his burden of showing that he sustained a compensable injury. In support of this conclusion the ALJ specifically found that the claimant failed to show that the incident of October 25th “proximately caused, aggravated, or accelerated” either his preexisting left knee condition or his low back condition. Accordingly, the ALJ denied the claim for compensation.

The claimant appealed the ALJ’s order and argues that the record compels the conclusion that the claimant sustained a compensable injury. The relief he requests is an order “that the Claimant’s preexisting left knee and low back conditions are the compensable consequence of a work-related incident,” and an order “[t]hat the need for medical benefits was the direct and proximate result of the work-related incident . . .” Claimant’s Brief in Support of Petition to Review at 4 (unpaginated). However, given the ALJ’s order and the supporting record in this case, we have no authority to enter such an order, which would be tantamount to the making on our part of factual findings contrary to those entered by the ALJ. Moreover, because we are unpersuaded that the ALJ committed reversible error, we must affirm his order.

The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2006. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).

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 substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). We note that expert medical opinion is not needed to prove causation where circumstantial evidence supports an inference of a causal relationship between the injury and the claimant’s condition. Savio House v. Dennis, 665 P.d. 141 (Colo.App. 1983). However, where, as here, conflicting expert opinion is presented, it is solely for the ALJ as fact-finder to weigh the competing evidence and resolve any conflicts. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990). We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). 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).

Contrary to the claimant’s argument, the record contains substantial evidence supporting the ALJ’s factual findings. The ALJ largely relied upon the medical record and the evidence of the claimant’s preexisting conditions to conclude that he failed to carry his burden of showing a compensable injury. The ALJ expressly found that the claimant failed to prove that the pallet-jack incident caused, aggravated, or accelerated either his preexisting knee condition or his preexisting back condition. In connection with the knee condition, the ALJ noted that the claimant had injured his knee in 1999 and had been undergoing treatment for symptoms caused by that injury. Based upon the medical reports of Drs. Winterton, Sanders, and Young, the ALJ inferred that a year before the work-related incident the claimant’s knee condition had deteriorated to the point where he required surgical repair. The ALJ also found that the claimant had injured his back in the 1999 accident, and that the claimant subsequently gave inconsistent medical histories to Dr. Young. Based in part upon the history given, the ALJ credited Dr. Young’s report that the claimant’s low back problems were not related to work, and inferred that those problems were caused by the heel lifts prescribed to correct his gait.

Finally, the ALJ expressly credited Dr. Sacha’s opinions as persuasive, and he relied heavily on those opinions in inferring that the incident on October 25th did not contribute to the claimant’s disability or need for medical treatment. Dr. Sacha reported that, although the claimant consistently denied previous back problems, he “has a long history of low back pain.” He further noted that a recent MRI revealed that his condition was essentially unchanged from a previous MRI. Dr. Sacha stated that “what is clear is that all this gentleman’s current complaints are all preexisting and not related to this work injury . . .” He also opined that “[i]t is clear it is service connected with all the same symptoms right after the time of this alleged injury and clearly this is not a work-related injury.” Report of John Sacha, M.D. at 3 (April 7, 2006). Hence, there is ample evidence in the lay and medical record from which the ALJ could infer that the incident of October 25th did not cause disability or the need for medical treatment and, therefore, was not a compensable injury.

Nor does the ALJ’s finding that an incident occurred with the pallet jack compel the conclusion that the claimant sustained a compensable injury. The ALJ correctly stated the applicable law when he noted that a preexisting medical condition does not preclude a claimant from recovering compensation where a work-related aggravation is the proximate cause of the disability or need for medical treatment. Order at 9 (unpaginated). However, as noted, the ALJ found that the claimant failed to prove that the incident “proximately caused, aggravated, or accelerated his preexisting left-knee or lower back conditions.” Merely because the ALJ found that an incident occurred during which the claimant’s knee “gave out” does not compel the conclusion that a compensable event occurred. In denying the claim, the ALJ relied upon the factual findings that the claimant had been undergoing periodic medical treatment for his knee and low back symptoms prior to the event at work. Moreover, the ALJ expressly found that the incident on October 25th was not the proximate cause of the claimant’s need for any medical treatment; rather, the need for medical treatment was caused by his preexisting conditions, which had previously deteriorated to the point where they were symptomatic and required treatment. Because the ALJ’s factual findings are supported by substantial evidence and reasonable inferences from the record and because he correctly applied the relevant law, we may not disturb the order.

We have considered the claimant’s remaining arguments and they do not persuade us that a different result is required.

IT IS THEREFORE ORDERED that the ALJ’s order dated August 18, 2006, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________ John D. Baird

_______________________

Curt Kriksciun

Yacoub Abdelfattah, 1064 Lavender Ave., Loveland, CO 80537

Lowe’s, Lisa Guillen, 5600 W. 88th Ave., Westminster, CO 80031

AIG, Specialty Risk Services, Amy Kinsey, P.O. Box 221700, Denver, CO 80222

Ring Associates, P.C., Jess M. Perez, Esq., 2550 Stover Street, Bldg C, Fort Collins, CO 80525 (For Claimant)

White Steele, P.C., Ted A. Krumreich, Esq., 950 17th
Street, 21st Floor, Denver, CO 80202 (For Respondent)