W.C. No. 4-534-830.Industrial Claim Appeals Office.
June 20, 2003.
FINAL ORDER
City of Aurora, the self-insured respondent, seeks review of an order of Administrative Law Judge Klein (ALJ) which found the claimant suffered a compensable occupational disease for which the respondent is solely responsible. We affirm.
The claimant is employed by the respondent as a firefighter. The claimant testified that he works an average of 56 hours per week. Between October 2000 and May 2002 the claimant was concurrently employed as a paramedic for Rural/Metro Ambulance where he was required to work at least 33 hours per month.
The claimant stated that on February 25, 2002, he woke up with a stiff neck. He testified that his symptoms gradually worsened until March 12 when he awoke with excruciating pain that radiated into his arms and fingertips. A cervical MRI revealed a significant disc herniation in the foramen at C5/6 on the right and a somewhat smaller disc protrusion or herniation centrally and to the left at C4/5. The claimant subsequently underwent a two-level anterior discectomy and fusion at the C4/5 and C5/6 levels of the cervical spine. The claimant attributed his condition to his work as a firefighter, and therefore did not file a claim against Rural/Metro Ambulance. (Tr. p. 25).
Crediting the claimant’s testimony, the ALJ found the claimant suffered an occupational disease to his cervical spine caused by cumulative trauma sustained during his employment as a firefighter. The ALJ also found that the claimant’s employment at Rural/ Metro Ambulance did not contribute to the injury. Therefore, the ALJ held the respondent solely responsible for temporary disability and medical benefits awarded on account of the injury.
On appeal, the respondent contends the ALJ erred in finding the claimant suffered a compensable injury. In particular, the respondent contends the ALJ disregarded evidence that Dr. Kleiner was the only treating physician who attributed the claimant’s cervical problems to his employment as a firefighter. We reject these arguments.
Section 8-40-201(14), C.R.S. 2002, defines an “occupational disease” as:
“a disease which results 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, 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 of employment. “
It is the claimant’s burden to prove by a preponderance of evidence that an injury is causally related to the employment. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). Once such causation is established, the burden shifts to the respondent to prove a nonindustrial cause for the injury. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Whether the claimant proved a compensable occupational disease is a question of fact for resolution by the ALJ. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Contrary to the respondent’s contention, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Instead, we are bound by all findings which are supported by substantial evidence. See § 8-43-301(8), C.R.S. 2002; May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
We also disagree with the respondent’s contention that substantial evidence is restricted to medical evidence. It is well-established that medical evidence is neither required nor dispositive of causation. In fact, the claimant’s testimony alone may be sufficient if the facts and circumstances indicate within a reasonable probability that the disease resulted from or was precipitated by employment activities. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical testimony is presented, it is the ALJ’s province to assess its weight and credibility. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The ALJ found that the employment as a firefighter requires the claimant to work 24- hour shifts in which he is required to respond to an average of 13 emergency calls per shift. The ALJ also found the job duties require extensive crawling, dragging hoses, throwing ladders, pulling down ceiling and wall matter, and carrying weights ranging between 150 and 175 pounds. Because the claimant is smaller in stature than many of his co-workers, the ALJ found the claimant is also required to crawl inside motor vehicles to extract accident victims. This duty forces the claimant into bent, twisted, or awkward positions. Therefore, the ALJ found the job requires repeated twisting of the neck, extension of the neck, and movement of the head and neck in awkward positions. The ALJ’s findings are amply supported by the claimant’s testimony and, therefore, must be upheld on review. (See Tr. pp. 14-16, 27, 29-30, 32). Further the ALJ’s findings support the conclusion the claimant proved a causal connection between his cervical condition and his employment as a firefighter.
The ALJ also relied on Dr. Kleiner’s opinion that a cumulative trauma was the source of the claimant’s cervical symptoms. To the extent Dr. Kleiner was unaware of the claimant’s complete medical history and the claimant’s recreational activities, that was pertinent to the probative weight to be accorded Dr. Kleiner’s testimony, but it did not preclude the ALJ from crediting his opinions. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968)
Moreover, the ALJ was free to credit only some of Dr. Kleiner’s opinions while rejecting the remainder of his opinions. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). Dr. Kleiner opined that heavy lifting could have been a causative factor in the claimant’s cervical problems. However, the claimant testified that his job duties as a paramedic were less physically demanding and Rural/Metro Ambulance had equipment to reduce heavy lifting. (See Tr. pp. 38, 40, 63). The ALJ could reasonably infer that the respondent failed to prove the claimant’s concurrent employment was a causative factor in the claimant’s injury.
Accordingly, it is immaterial that Dr. McCranie and Dr. Brunworth did not relate the claimant’s injury to his employment. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (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). This is true because substantial evidence not determined by the number of witnesses presented by each party, and the ALJ is free to credit a particular medical opinion over multiple contrary opinions. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
The respondent’s remaining arguments on this issue have been considered and do not alter our conclusions. Dr. Brunworth opined that “it is common for people to develop herniated discs with no specific trauma and with no obvious precipitating factors.” (Respondents’ Hearing Exhibit J). However, she did not specifically suggest that this was the cause of the claimant’s disc herniation. Therefore, the ALJ reasonably inferred that Dr. Brunworth did not provide an alterative explanation for the claimant’s neck problems. (Finding of Fact 20). Moreover, we disagree with the respondent’s contention that the failure of Dr. McCranie and Dr. Brunworth to offer an alternative explanation for the cause of the claimant’s condition is not a “valid” reason for the ALJ to reject their opinions on the issue of causation.
Next, the respondent contends the claimant did not suffer a compensable injury because he was equally exposed to hazards of the disease outside his employment. Again, we disagree.
The claimant admitted a history of headaches in his youth and head injuries in 1977 and 1983. (Tr. pp. 45-47). The claimant also admitted he used to play competitive racquetball and that it caused some shoulder problems which necessitated surgery in 1992. (Tr. p. 42). However, he stated he did not experience any subsequent aggravations and discontinued the sport in 1993. (Tr. pp. 43, 64). Further, Dr. Kleiner rejected the respondent’s suggestion that racquetball may have contributed to the injury, and the medical opinions relied upon by the respondent do not compel a contrary conclusion. (Kleiner depo. p. 13). Therefore, we cannot say this record compels the conclusion the respondent proved a nonindustrial cause for the claimant’s injury.
Finally, we reject the respondent’s contention the ALJ erred in failing to apportion liability for the occupational disease in accordance with Dr. Kleiner’s opinions. Dr. Kleiner stated that he “would have a hard time apportioning” causation and his 50/50 apportionment between the concurrent employments was a “best guess.” (Kleiner depo. pp. 10, 23). Therefore, the record supports the ALJ’s determination that Dr. Kleiner was unable to apportion liability within a reasonable degree of medical probability.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 2002, 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 20, 2003 to the following parties:
Stephen L. Blackwood, 2564 E. 125th Way, Thornton, CO 80241
Marsha Haugum, Risk Management, City of Aurora, 15151 El Alameda Pkwy., 3rd floor, Aurora, CO 80012
Rural/Metro Ambulance, 3350 Peoria St., #100, Aurora, CO 80010
Legion Insurance Company, c/o Amy Gerelick, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Charles W. Hemphill, Esq., 8441 W. Bowles Ave., #250, Littleton, CO 80123 (For Respondent City of Aurora)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents Rural/Metro Ambulance and Legion Insurance Company)
BY: A. Hurtado