W.C. No. 4-376-772Industrial Claim Appeals Office.
June 8, 1999.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant suffered a compensable injury due to the aggravation of a preexisting condition and ordered the respondent to pay medical and temporary disability benefits. We affirm.
The claimant testified that in July 1996 she began working for the respondent as a donut fryer in the bakery department. In March 1997 the claimant was transferred to the meat department where she worked as a meat wrapper.
The ALJ found that prior to March 1997 the claimant had back problems due to spondylolisthesis. The ALJ also found that the claimant had an incident where she fell down the stairs.
The claimant testified that she suffered a gradual worsening of her preexisting back problems while working in the meat department. In October 1997, the claimant sought treatment from Dr. Lindquist and Dr. Grossnickle for back pain. Dr. Grossnickle diagnosed the claimant as suffering from symptomatic spondylolisthesis, and restricted the claimant to modified employment commencing March 11, 1998. The employer did not provide modified employment within the claimant’s restrictions, and therefore, the claimant left work and received union disability benefits. Dr. Grossnickle and Dr. Kleiner later recommended surgery.
In April 1998 the claimant filed a workers’ compensation claim which alleged that her disability and need for surgery is due to the occupational aggravation of her preexisting spondylolisthesis. The respondents denied liability.
The ALJ found that the job of meat wrapper required the claimant to carry pans of meat weighing 30-40 pounds, unload hams from boxes weighing 40 pounds, and wrap individual packages of meat weighing approximately 1 to 3 pounds. The ALJ also found that the job required repetitive twisting, turning and bending. Crediting the claimant’s testimony and the medical opinions of Dr. Grossnickle, Dr. Kleiner and Dr. Lindquist, the ALJ determined that the claimant’s preexisting spondylolisthesis was significantly aggravated and worsened by the repetitive bending, stooping and lifting required of the claimant’s job as a meat wrapper. Therefore, the ALJ determined the claimant suffered a compensable injury in the nature of an occupational disease. The ALJ further determined that the treatment provided by Dr. Grossnickle including the recommended surgery is reasonably necessary to cure and relieve the effects of the industrial aggravation. Consequently, the ALJ ordered the respondent to pay medical and temporary disability benefits.
On appeal the respondent contends that there is no “credible evidence” to support the ALJ’s finding of a compensable injury. We disagree.
An occupational disease is a disease which results directly from the conditions under which the claimant performs his employment, and “can be fairly traced to the employment as a proximate cause.” Section 8-40-201(14), C.R.S. 1997; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The fact that a claimant has a preexisting condition or injury does not preclude the claimant from proving a compensable injury due to an occupational aggravation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Pain is a typical symptom caused from the aggravation of a preexisting condition. Insofar as the pain triggers the claimant’s need for medical treatment, the claimant has suffered a compensable injury. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). In other words, the claimant is entitled to medical benefits for the aggravation, so long as the pain is proximately caused by the industrial aggravation and is not simply a direct and natural consequence of the original injury. See § 8-41-301(1)(c), C.R.S. 199 ; Parra v. Ideal Concrete, W.C. No. 4-179-455 (April 8, 1998); Witt v. James J. Keil Jr., W.C. No. 4-225-334 (April 7, 1998).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; 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 or contrary inferences F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ’s credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim A Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Dr. Grossnickle’s testimony is subject to conflicting inferences, and it was the ALJ’s sole prerogative to resolve the conflicts. Metro Moving Storage Co. v. Gussert, supra. Dr. Grossnickle testified that the claimant’s fall down the stairs could have caused an aggravation of the spondylolisthesis. However, Dr. Grossnickle was unable to state whether the claimant’s increased symptomatology was due to the fall rather than employment activities. (Grossnickle depo. pp. 22, 23). The claimant testified that the fall down the stairs caused “mostly” shoulder pain, and that the heavy lifting required of her job as a meat wrapper had begun to cause back problems prior to the fall. (Tr. pp. 19, 27). Under these circumstances, Dr. Grossnickle’s testimony does not compel the finding that the claimant’s ongoing back problems are the result of the fall.
Dr. Grossnickle also stated that the claimant’s spondylolisthesis was not caused by the claimant’s employment, and that work activities do not necessarily make spondylolisthesis worse. (Grossnickle depo. p. 13). However, Dr. Grossnickle opined that repetitive bending and lifting worsened the claimant’s symptoms. (Grossnickle depo. p. 18; Grossnickle April 14, 1998). Dr. Grossnickle also stated that surgery was recommended to treat the claimant’s symptoms and not the objective structure of the claimant’s spine. (Grossnickle depo. pp. 19, 24). Therefore, he opined that if the claimant’s work involved repetitive bending and twisting of the spine the claimant’s need for surgery is related to the claimant’s employment. (Grossnickle depo. p. 19).
There is substantial evidence in the claimant’s testimony to support the ALJ’s findings concerning the claimant’s job duties as a meat wrapper. (Tr. pp. 6-9). Furthermore, the claimant testified that her job duties as a meat wrapper were different that her duties as a donut fryer and that her back problems gradually worsened after the transfer to the meat department. (Tr. pp. 27, 28). Consequently, Dr. Grossnickle’s testimony supports the ALJ’s finding of a compensable injury.
The claimant’s testimony also contains substantial evidence that the employment resulted in a significant aggravation of her preexisting condition. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963) (substantial evidence is not limited to medical evidence); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony sufficient evidence that employment caused his heart attack). Therefore, the existence of medical evidence which, if credited, might support a contrary determination is immaterial. See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
However, the respondent contends the claimant’s testimony is not credible evidence because the claimant gave inconsistent statements and omitted critical medical history to the examining physicians. We disagree.
Admittedly, the claimant initially thought her increased back pain was attributable to a pregnancy or the fall. However, the fact that the claimant did not know the actual cause of her increased symptomatology did not preclude the ALJ from crediting her testimony that her back condition worsened as a result of her job duties in the meat department. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is for ALJ to resolve internal inconsistencies in a witness’ testimony); West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication) (inconsistencies, contradictory evidence and incomplete testimony are not uncommon to the adversary process).
Similarly, the fact that the claimant did not file a workers’ compensation claim until after she was removed from work and began receiving union disability benefits does not render her testimony on causation incredible as a matter of law. The claimant testified that she filed for union disability benefits because the employer denied that the injury was work-related, and she didn’t realize she could file a formal claim for workers’ compensation until she spoke to an attorney. (Tr. p. 16).
The claimant’s testimony is buttressed by evidence that no surgery was recommended prior to her work in the meat department and she was not medically restricted from performing her regular employment until after a prolonged period of work in the meat department.
Moreover, the ALJ’s pertinent findings are consistent with the medical reports of Dr. Lindquist and Dr. Kleiner. On October 7, 1997, Dr. Lindquist recommended the claimant avoid bending, stooping and lifting “as much as possible,” because “heavy lifting could exacerbate or worsen [the claimant’s] symptoms.” On March 10, 1998, Dr. Lindquist advised claimant to discontinue lifting heavy meat trays. Furthermore in a letter dated April 20, 1998, Dr. Lindquist reported that the claimant did not report any specific injury and the amount of lifting, bending and stooping the claimant did at her employment “would certainly have exacerbated her pain.”
On July 22, 1998, Dr. Kleiner diagnosed the claimant with “probable symptomatic spondylolisthesis.” Dr. Kleiner opined that “these symptoms developed after a job change and are likely related to this occupational change, since there is a considerable amount of more twisting and lifting with this particular occupation.” In assessing the probative weight of Dr. Kleiner’s testimony, the ALJ was free to consider evidence that Dr. Kleiner was not aware of the claimant’s 1997 fall. However, such evidence did not preclude the ALJ from crediting Dr. Kleiner’s opinion that there is a causal relationship between the claimant’s need for surgery and the employment, especially where Dr. Grossnickle and Dr. Lindquist rendered similar opinions. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). Consequently, the respondent has failed to establish grounds which afford us a basis to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 17, 1998, 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 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. 1998.
Copies of this decision were mailed JUNE 8, 1999 to the following parties:
Colette L. Blake, P. O. Box 714, Snyder, CO 80750
Safeway Stores, Inc., Attn: Suzanne Kintzele, 6900 S. Yosemite, Englewood, CO 80112
Gregory Chernushin, Esq., 1530 S. Tejon, Colorado Springs, CO 80906 (For Claimant)
Donald G. Moore, Esq., 851 Clarkson St., Denver, CO 80218 (For Respondent)
BY: JLS