W.C. No. 4-668-929.Industrial Claim Appeals Office.
July 27, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated April 26, 2006, that denied and dismissed the claim. We affirm.
A hearing was held on the issues of the compensability of the claimant’s claim and her entitlement to medical benefits and to temporary disability benefits. Following the hearing the ALJ entered factual findings that may be summarized as follows. On June 10, 2001 the claimant began working on the employer’s assembly line, which is designed for the assembly of medical blood collection kits. The assembly line is organized into two “cells,” the first of which (“cell A”) has 20 workstations and the second of which (“cell B”) has 19 workstations. Employees perform the work at a particular workstation for 30 to 45 minutes and then move to another workstation. Employees are also moved from cell A to cell B on a weekly basis. The production of the assembly line varied, with a normal shift resulting in from 400 to 800 finished kits, and occasionally up to 1000 kits being produced. The employer planned to increase production and by October 2005 additional workers had been hired and the line was producing 1000 per shift and occasionally up to 1200. In March 2005 the claimant consulted Dr. Thomas and reported mid-back and neck pain resulting from her work on the assembly line. In October 2005 she reported to the employer that she had sustained an occupational disease affecting her hand, neck and shoulder. She was referred to Dr. Ellis, who prescribed medication, and recommended physical therapy and a ten-minute break for every hour worked on the assembly line. He also referred the claimant to Dr. Sacha, who opined that his examination was “non-physiologic with no objective findings.” He referred the claimant for EMG studies in order to rule out carpal tunnel syndrome and the results of those tests were normal. Dr. Sacha stated that the claimant was not suffering from any pathology and that she had not sustained a work-related injury or disease. The claimant returned to Dr. Ellis, who also stated that she exhibited no objective findings consistent with a work-related injury and he released her to full duty. The claimant consulted with Dr. Healy, who stated that her problems were caused by her work on the assembly line; however, the ALJ rejected Dr. Healy’s opinions as unpersuasive based upon certain assumptions the doctor made about the nature of the assembly line work. Rather, the ALJ credited the testimony of the employer’s occupational health nurse manager, Ruth Korecki, who stated that the assembly line was designed by an ergonomist, that it is regularly evaluated by one, and that numerous precautions are taken to prevent injury and disease on account of repetitive motion by the employees. The ALJ also expressly credited the opinions of Drs. Ellis and Sacha.
Based upon the factual findings, the ALJ concluded that the claimant failed to carry her burden of showing that she sustained an occupational disease as a result of working on the employer’s assembly line. Accordingly, she dismissed the claim. The claimant appealed and raises six specific allegations of error. However, we are unpersuaded that the ALJ committed any reversible error.
Section 8-40-201(14) defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under § 8-40-201(14), C.R.S. 2005 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought. Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 8-43-304(8), C.R.S. 2005 City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). 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). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
Here, there is ample evidence supporting the ALJ’s conclusion that the claimant failed to carry her burden of showing an occupational disease. The ALJ expressly credited the opinions of Drs. Ellis and Sacha, both of whom examined the claimant and stated that she did not sustain a work-related injury or disease. The former stated that “[i]t was my opinion that she did not have a significant injury when I saw her and that remains my opinion.” Report of Clarence Ellis, M.D. at 1 (February 6, 2006) (letter to Cathy Lindgren). Dr. Sacha stated that “[t]his patient has a completely nonphysiologic exam with no objective findings.” Report of John T. Sacha, M.D. at 3 (November 2, 2005). In a later report Dr. Sacha reiterated that “there are no and at no point have been any objective findings,” and summarized his observations that there were “no objective findings in any area, multiple nonphysiologic pain behaviors, multiple complaints that do not fit any specific patterns, no specific injury at work, [and] not meeting any criteria for any specific repetitive motion or occupational injuries. . . .” Based upon his examinations of the claimant, Dr. Sacha concluded that “she certainly does not have a work-related injury.” Report of John T. Sacha, M.D. at 2 (January 30, 2006). As noted, this constitutes substantial evidence supporting the ALJ’s conclusion that the claimant failed to carry her burden.
Nor are we persuaded by the claimant’s specific arguments that the ALJ erred. The claimant first contends that the ALJ erred in requiring the claimant “to prove fault on the part of the employer.” Claimant’s Brief at 11. However, the claimant has not cited us to any portion of the transcript, the order, or the rest of the record in support of his argument. We are unable to locate anything in the record that establishes that the ALJ placed that burden on the claimant. Rather, she correctly stated the legal standard applicable to the claimant’s burden of showing an occupational disease. That standard, of course, does not include a showing that the employer is at fault; however, she did not appear to require that showing and we are unable to ascertain the basis of the claimant’s contention of error in this respect.
The claimant next contends that the ALJ misconstrued the opinion of Dr. Healy, erroneously inferring that it was “heavily dependent on his mistaken belief that claimant worked in a poor ergonomic environment.” Claimant’s Brief at 11-12. Dr. Healy stated in his report that the claimant was suffering from a number of conditions, “due to poor ergonomic set up at her assembly line job and increased work load.” Report of Edwin M. Healey, M.D. at 7 (January 4, 2006). He noted later in the report that her clinical presentation was compatible with one who has worked at a “repetitive job” with a “non-suitable ergonomic work station,” and that she had “not had any job site evaluation or ergonomic changes made at her work site. . . .” Id. At 8. Further, Dr. Healey opined that the claimant “needs to have an ergonomic evaluation of her work place before she returns to work.” Id. At 9. The ALJ could thus reasonably infer from his report that Dr. Healey’s opinions were dependent upon his belief that the claimant’s work place was not ergonomically suitable. Moreover, the ALJ could reasonably infer that that belief was mistaken. The employer’s occupational health nurse manager, Ruth Korecki, testified at great length regarding the measures taken by the employer to insure that the design of its assembly line would minimize fatigue, discomfort, and injury. These measures included consultation with ergonomists and attendance by the employer’s engineers at classes on ergonomics, and the ALJ could infer from Korecki’s testimony that Dr. Healy’s understanding of the claimant’s work environment was a “mistaken” one.
The claimant next contends that the ALJ placed the burden on the claimant to prove that “the work was non-ergonomic.” As noted above in connection with the claimant’s earlier argument, the ALJ correctly understood the claimant’s burden to show that she sustained an occupational disease. The ALJ, again correctly, stated that the burden was on the claimant to show that her condition “result[ed] directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause. . . .” Section 8-40-201(14), C.R.S. 2005. Certainly, a showing that the work was “non-ergonomic” would assist the claimant in carrying that burden; however, we are unable to locate any point in the record where the ALJ required the claimant to establish that fact. In our view, although much of the evidence went to the ergonomic nature of the assembly line, the ALJ never viewed the claimant’s burden as including a showing that the work was “non-ergonomic.” Although such a showing might be important to the claimant’s case, the ALJ did not view it as an element of that case. Moreover, insofar as the claimant contends that the ALJ’s order must be set aside because the term “ergonomic” was not defined by any expert, that argument is without merit. In our view that term has a commonly accepted meaning likely to be readily understood, and we note that if either party wished any witness to clarify or define that or any other term used in testimony, the party was free to inquire into that matter.
The claimant also contends that the ALJ erroneously found that Drs. Sacha and Ellis had viewed the assembly line. The employer’s occupational health nurse manager specifically testified that both doctors had visited the plant and that both “took time to look at the different job stations.” Tr. at 58. She further stated that both questioned her regarding certain aspects of the assembly line and that she explained “the different stations that they rotate through.” Tr. at 58. Insofar as the claimant argues that the ALJ erred in considering the visits of Drs. Sacha and Ellis to the assembly line because the record lacks testimony from the doctors concerning those visits, that argument is without merit. In weighing the evidence, the ALJ could consider that Drs. Sacha and Ellis had personal knowledge of the claimant’s work station and Dr. Healy did not. The claimant’s argument concerning the state of the evidence regarding the doctors’ visits to the plant merely goes to the weight that should be afforded that evidence. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). It does not affect its admissibility or the ability of the ALJ to rely upon it in reaching her conclusions.
Finally, the claimant asserts that the ALJ erred in relying upon the opinions of Drs. Sacha and Ellis, and in failing to mention the “unbiased reports” from Kaiser. It is well-settled that the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is presumed to have considered the entire record and is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We have considered the claimant’s remaining arguments and they do not persuade us to reach a different result.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 26, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Amira Bajraktarevic, Arvada, CO, Ruth Korecki, Gambro, Inc., Lakewood, CO, Kathy Lindgren, G.E. Young Company, Greenwood Village, CO, Jack Kintzele, Esq., Denver, CO (For Claimant).
David Dworkin, Esq., Denver, CO (For Respondent).