W.C. Nos. 3-071-040 4-242-277Industrial Claim Appeals Office.
February 21, 1996
FINAL ORDER
Umetco Minerals Corporation (Umetco), and its insurer, Continental Insurance Company, (the respondents) seek review of an order of Administrative Law Judge Martinez (ALJ) which reopened W.C. No. 3-071-040
and ordered them to pay temporary disability and medical benefits. We affirm.
W.C. No. 3-071-040 involves an admitted low back injury the claimant suffered during his 1990 employment with Umetco. As a result of the injury, the claimant underwent two back surgeries. In October 1992, Dr. Patterson determined the claimant to be at maximum medical improvement, and the claim was closed. In 1995 the claimant petitioned to reopen the claim and alleged a worsening of his condition from the 1990 injury.
The claimant also filed W.C. No. 4-242-277 and alleged that his back problems are attributable to a new, separate injury on January 31, 1995, while lifting a 45 pound flywheel during his employment for Basin Western Inc. (Basin). The Colorado Compensation Insurance Authority and Basin denied liability for the claim.
From conflicting evidence the ALJ determined that the claimant’s current back problems are not the result of a new injury. Instead, the ALJ determined that the claimant suffered a worsening of his back condition from the 1990 injury and that his disability and need for further medical treatment are consequences of that injury. Therefore, the ALJ reopened W.C. No. 3-071-040, and dismissed W.C. No. 4-242-277.
In support of his order the ALJ made the following factual determinations. The claimant was symptomatic at the time of maximum medical improvement from the 1990 injury, and continued to experience back pain and periodic “flareups.” The flareups were not necessarily associated with extraordinary physical exertion. In fact, one such flareup occurred while the claimant was getting out of a car. Furthermore, the claimant was restricted from lifting over 50 pounds as a result of the 1990 injury, and the claimant’s work at Basin, including his activities on January 30, 1995, did not exceed that restriction. The ALJ also found that the claimant’s current symptoms are of the same type and in the same location as the claimant experienced prior to January 30, 1995, except that, on the days the condition is most painful it is worse than it was prior to January 30.
On appeal the respondents contend that the ALJ erred in failing to find that the claimant’s current back problems are the result of a new injury. In support, the respondents cite the evidence that the claimant did not receive medical treatment for his back between 1992 and 1995, and that the claimant’s condition after January 30, 1995 was much worse. The respondents also rely upon Dr. Primack’s opinion that the claimant suffered a new injury, as well as Dr. Heil’s testimony that the January 30 incident was an “acute exacerbation.” Therefore, the respondents argue that the ALJ abused his discretion in finding that the claimant’s condition is causally connected to the 1990 injury. We disagree.
As the respondents acknowledge, the question of whether the claimant’s disability and need for medical treatment is the result of a prior injury or a new injury is a factual determination for resolution by the ALJ Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Further, the respondents concede that the ALJ’s determination is governed by the substantial evidence test. Therefore, the pertinent issue is not whether the record contains some evidence, which if credited, might support a finding that the claimant suffered a new, separate injury on January 30, 1995, but whether there is substantial evidence in the record to support the ALJ’s contrary determination. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here, the ALJ expressly credited the claimant’s testimony. (Finding of Fact 20). We have reviewed the claimant’s testimony and conclude that this testimony is alone, sufficient to support the ALJ’s pertinent findings of fact. (Tr. pp. 12, 17-18, 27-29, 31, 37, 39-40, 43, 52); see also Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
Furthermore, the ALJ did not find the opinions of Dr. Primack persuasive. Instead, the ALJ was most persuaded by the opinions of Dr. Heil, and expressly resolved all conflicts between the opinions of Dr. Primack and Dr Heil in favor of Dr. Heil. We have no authority to interfere with the ALJ’s resolution of the conflicting expert testimony. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Nor may we substitute our judgment for that of the ALJ concerning the probative value and sufficiency of the testimony he found persuasive. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Dr. Heil stated that an “acute exacerbation,” meant that the claimant was “hurting much more now than he was.” (Heil depo. p. 19). The ALJ was particularly persuaded by Dr. Heil’s opinion that the claimant’s 1995 MRI scan was not “markedly different” than the claimant’s MRI scan after the two back surgeries. (Heil depo. pp. 10-12; medical reports February 6, 1995 March 2, 1995). The ALJ also relied upon Dr. Heil’s testimony that “the claimant’s present symptoms or present problems, probably would date back to his initial back injury, since he is more or less reinjured at the same level that he had previously injured.” (Heil depo. p. 12).
Insofar as Dr. Heil’s testimony may be subject to conflicting interpretations, it was the ALJ’s sole prerogative to resolve the conflicts. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). The ALJ resolved the conflict by crediting that part of Dr. Heil’s testimony which suggests that the claimant’s back problems are the natural and proximate result of the 1990 injury. (Heil depo pp. 16, 19; report March 3, 1995).
Moreover, the ALJ’s findings support a determination that the claimant’s back problems are the result of a worsening of the claimant’s condition from the 1990 injury. Consequently, we cannot say that the ALJ abused his discretion in reopening the 1990 claim. Section 8-43-303 C.R.S. (1995 Cum. Supp.); Osborne v. Industrial Commission, 725 P.2d 63
(Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 8, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 21, 1996 to the following parties:
Jimmy Beanland, P.O. Box 344, Dove Creek, CO 81324
Umetco Minerals Corp., Employee Taxes Section G-1-322, Danbury, CT 06817-0001
Basin Western, Inc., East Highway 40, P.O. Box 877, Roosevelt, UT 84066
Continental Insurance Co., % Continental Loss Adj., P.O. Box 17930, Denver, CO 80217-0930
CNA Ins. Co., Attn: Anthony Ardolino, P.O. Box 5487, Ft. Lauderdale, FL 33310
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco, Esq. (Interagency Mail)
Jordan S. Levine, Esq. and Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203
(For Continental Respondents)
BY: _______________________