W.C. No. 4-267-791Industrial Claim Appeals Office.
October 3, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed his claim for workers’ compensation. We affirm.
The claimant alleged a work-related injury to his upper extremities following a heat stroke on July 26, 1995. Dr. Weiss diagnosed the claimant as suffering from “Buerger’s Disease” and “traumatic vasculitis.” Dr. Weiss also opined that the Buerger’s Disease was aggravated by the repetitive activities the claimant performed during his employment as an auto technician for Cascade Auto Glass (Cascade). Further, Dr. Weiss opined that the claimant’s condition was consistent with Carpal Tunnel Syndrome (CTS) and Reflex Sympathetic Dystrophy (RSD).
The ALJ found that the claimant’s symptoms were not caused or aggravated by the heat stroke or the repetitive activities of the claimant’s employment. Rather, the ALJ credited the opinions of Dr. Glassman and Dr. Gevaert that the claimant’s symptoms are the result of the Buerger’s Disease. Dr. Glassman stated that Buerger’s Disease is a small artery disease which, “without exception,” is found in chronic smokers, and typically occurs in male patients ages 20 to 40. Dr. Glassman also stated that the only treatment is complete abstinence from tobacco use. Therefore, the ALJ determined that the claimant failed to sustain his burden to proof that his current condition is work-related.
On appeal, the claimant essentially contests the ALJ’s failure to credit Dr. Weiss’s opinion that the Buerger’s Disease was aggravated by the repetitive activities of the claimant’s employment. In particular, the claimant contends that Dr. Weiss’s opinion was “uncontradicted.” The claimant also contends that Dr. Weiss’s opinion is the only medical evidence that the claimant is suffering from work-related CTS and RSD. Consequently, the claimant argues that the medical record is inconsistent with the ALJ’s findings of fact. We disagree.
Contrary to the claimant’s assertion, the medical evidence concerning the cause of the claimant’s current condition was not uncontroverted. In fact, the ALJ noted the conflict between Dr. Glassman, Dr. Gevaert and Dr. Weiss, and expressly resolved the conflict against Dr. Weiss based upon his credibility determinations. See Conclusions of Law p. 5.
Moreover, the ALJ was not bound by Dr. Weiss’s opinions even if they were “uncontroverted.” See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Rather, the ALJ was free to credit all, part, or none of Dr. Weiss’s opinions. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
The ALJ did not find Dr. Weiss’s opinions persuasive, due in part to the deposition testimony in which Dr. Weiss contradicted her initial diagnosis of “traumatic vasculitis” (Weiss depo., p. 7). The ALJ also noted evidence that the claimant’s condition worsened after he left his employment, and EMG studies which were inconsistent with Dr. Weiss’s diagnosis of CTS. Further, the ALJ determined that Dr. Weiss presented no objective evidence to support her diagnosis of RSD. Rather, Dr. Weiss stated that she suspected RSD despite the claimant’s normal bone scan, because it is “the only other thing that I can come up with” to explain the claimant’s pain. (Weiss depo., p. 13).
The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, we have no authority to interfere with the ALJ’s assessment of the weight and credibility of the expert medical testimony. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ is free to credit one medical opinion to the exclusion of a contrary medical opinion); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992) Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
We also reject the claimant’s contention that the ALJ misconstrued Dr. Weiss’s “presumption” that the claimant’s condition is work-related. As noted by the ALJ, Dr. Weiss stated that:
“I want to accept that it’s work-related because I don’t see where he got better and then worse or went to work for someplace else and then go worse. The problem that I have with that is his problem has not been well defined. And he’s in a situation now where he’s in a very bad financial situation. So he’s not going to be able to purse anything unless its Work Comp.” (Weiss depo., p. 14).
In response to a question concerning the claimant’s need for medical treatment is related to his employment, Dr. Weiss also stated:
“I’m not familiar enough with the law to know. But I would say I don’t see any reason not to assume it’s work related until we prove otherwise.”
Similarly, Dr. Weiss testified that the claimant’s current symptoms are related to a condition other than the Buerger’s Disease, which she has been “unable to diagnose.” (Weiss depo., p. 17). She added that “many of these people are covered under work comp until the diagnoses are resolved and it’s established as work comp or not work comp.” (Weiss depo., p. 16).
This testimony supports the ALJ’s inference that “Dr. Weiss reversed the burden of proof when she indicated that she had to presume that the claimant’s symptoms were work-related until they were proven to be otherwise.” See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (issue on review is whether the evidence when viewed in the light most favorable to the prevailing party is sufficient to support the ALJ’s pertinent findings). Consequently, it is immaterial that Dr. Weiss’s deposition testimony might be interpreted as reflecting her opinion that no non-industrial cause for the claimant’s condition was found.
The claimant’s remaining arguments have been considered and are unpersuasive. Furthermore, insofar as Dr. Weiss recommended additional testing to ascertain whether the claimant has RSD, the ALJ was not precluded from denying the claim in the absence of those test results. See Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935) (parties are expected to present all of their evidence at the appointed hearing).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 3, 1996 to the following parties:
Robert D. Anderson, 2002 Graves Court, Northglenn, CO 80233
Cascade Auto Glass, Attn: Brad Nelson, P.O. Box 586, Beaverton, OR 97075
Reliance Insurance Co., Attn: Claire Bennett, 7600 E. Orchard Rd., #310S, Englewood, CO 80111
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th Flr., Lakewood, CO 80215 (For the Claimant)
Gregory B. Cairns, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80210 (For the Respondents)
BY: _______________________