W.C. No. 3-115-499Industrial Claim Appeals Office.
March 5, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which denied her claim for medical benefits. The claimant argues the ALJ erroneously found that the claimant failed to prove a causal relationship between the industrial injury and the need for treatment. The claimant also contests the ALJ’s conclusion that Dr. Dowling was not authorized. We affirm.
The primary issue in the case is whether surgery performed on the claimant’s right elbow by Dr. Dowling is causally connected to the claimant’s 1994 industrial injury. In March 1994, the claimant injured her left elbow and underwent several surgeries. She reached maximum medical improvement for her left elbow in June 1996.
In February 1997 the claimant sought treatment for her right elbow. She was examined by Dr. Verploeg, who had provided authorized treatment for the left elbow. In a note dated February 20, 1997, Dr. Verploeg stated that the claimant previously complained about her right elbow, and he thought the problems were related to overuse of the right arm because of the claimant’s inability to use her left arm. Dr. Verploeg treated the claimant with the injections on February 20 and April 2, 1997.
The claimant moved to Texas in June 1997. She continued to experience right elbow symptoms which grew worse over time. In September 1997 the claimant contacted Dr. Verploeg who issued a general “orthopedic referral” for evaluation and treatment. The claimant obtained treatment from Dr. Dowling and ultimately underwent surgery on the right elbow.
The ALJ found that the claimant presented no evidence or opinions from Dr. Dowling concerning the diagnosis or the cause of the need for surgery. The ALJ noted that the claimant accepted a position as a hotel desk clerk after moving to Texas, and observed that the claimant’s elbow symptoms could have been caused by that employment. Consequently, the ALJ concluded that the claimant’s “case was deficient of sufficient evidence to be persuasive” on the issue of causation. The ALJ further stated the claimant failed to “carry her burden of proof because she did not have sufficient medical evidence to show that the care commenced by Dr. Dowling in November 1997 was caused by overuse of her right elbow as a result of lack of ability to use her left elbow.”
On review, the claimant argues the ALJ erroneously required the presentation of medical evidence of causation. Further, the claimant argues the ALJ erred by deciding the causation issue based on the absence of a report from Dr. Dowling rather than evaluating the evidence which was presented. We find no error.
The claimant was required to prove to a reasonable probability that the need for treatment of her right elbow was caused by the 1994 injury to her left elbow. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The question of whether the claimant carried the burden of proof is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Because the issue of causation is factual in nature we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Expert medical testimony is neither necessary nor conclusive on the issue of causation. However, to the extent such evidence is presented, it is the ALJ’s province to assess its weight and credibility Rockwell International v. Turnbull, supra. Further, the ALJ may discredit expert medical opinion even if it is unrefuted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Finally, the ALJ is not held to a standard of absolute clarity in expressing her findings of fact and conclusions of law. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant’s argument notwithstanding, we do not read the order as evidence that the ALJ believed the claimant was required to produce medical evidence of causation in order to prove compensability. Rather, reading the order in its entirety, it is apparent the ALJ denied the claim because she found the claimant’s proof of causation unpersuasive in the absence of any report from Dr. Dowling. The ALJ recognized that the claimant presented some proof of causation through her own testimony and the office notes of Dr. Verploeg. However, the ALJ did not find this evidence persuasive in light of evidence that the claimant’s right elbow problems could have been caused by her employment in Texas.
Moreover, at the commencement of the hearing the ALJ was made aware that the claimant would not present any medical records from Dr. Dowling. Although the ALJ opined that the case would be difficult to prove without Dr. Dowling’s records, she recognized that it was possible for the claimant to succeed without them. (Tr. p. 14-15).
Insofar as the claimant is arguing that the ALJ based her decision on evidence which was not presented rather than the evidence offered at the hearing, we disagree. The ALJ was entitled to assess the weight of the evidence presented by the claimant and determine its persuasive effect. In light of the fact the claimant moved to Texas and took a job which might have caused her symptoms, the ALJ was free to discount the claimant’s proof of causation in the absence of an updated opinion from Dr. Dowling.
Because the evidence supports the ALJ’s determination that the claimant failed to prove a causal connection between the medical treatment and the industrial injury, we need not reach the question of whether the ALJ correctly determined that Dr. Dowling was not an authorized treating physician.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 21, 1998, it is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain
________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 5, 1999 to the following parties:
Melody Auer, P.O. Box 775589, Steamboat Springs, CO 80477
Steamboat Ski Resort Corporation, 2305 Mount Werner Circle, Steamboat Springs, CO 80487-9023
Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., Suite 100, Englewood, CO 80112
Douglas W. Poling, Esq., 1600 Pennsylvania St., Denver, CO 80203-1303 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., Suite 570, Denver, CO 80209 (For Respondents)
BY: ________________