W.C. No. 4-546-150.Industrial Claim Appeals Office.
August 15, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant was diagnosed and treated for carpal tunnel syndrome (CTS). The claimant alleged the CTS was the result of an occupational disease in her upper extremities which was caused by repetitive activities required in her employment as a mortgage broker and her prior banking career. In support, the claimant presented medical records from Dr. Ritchie and Dr. Carlson, which indicate the claimant reported her job required a lot of typing and writing. (See Claimant’s Hearing Exhibits 1; 2). However, neither Dr. Ritchie nor Dr. Carlson offered an opinion concerning whether the claimant’s employment caused, aggravated or accelerated the CTS.
In contrast, Dr. Palmer opined there were “no significant medical records that would indicate a cause or particular exacerbation of either [the claimant’s] back or upper extremities symptoms as a result of her work activities.” Further, Dr. Palmer opined the claimant’s “wrist problems are pre-existing conditions, and are completely unrelated to her most recent work activities.”
Crediting the opinions of Dr. Palmer, the ALJ found the claimant failed to prove she suffered an occupational disease and that her work for the respondent-employer was a causative factor in the development of CTS. Therefore, the ALJ determined the claimant failed to prove a compensable injury and denied the claim.
On review, the claimant contends there was an unstated “assumption” by the parties that the claimant’s CTS was the result of an occupational disease and the parties disputed only whether the insurer is liable for the disease under the provisions of § 8-41-304(1), C.R.S. 2002. That statute provides that the employer, and the insurance carrier if any, in whose employment the claimant is “last injuriously exposed to the hazards of such disease and suffered a substantial, permanent aggravation” is solely responsible for the injury without contribution from any other employer or insurer. Therefore, the claimant contends the ALJ erroneously required the claimant to prove she suffered an occupational disease. We perceive no basis to disturb the ALJ’s order.
Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Our review is limited to the evidentiary record before the ALJ. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
Stipulations are a form of judicial admission which become binding on the parties. Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo.App. 1986). A judicial admission is a “formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters about which there is no dispute.” Kemper v. Hurd, 713 p. 2d 1274, 1279 (Colo. 1986). However, our review of the record does not support the claimant’s contention that the respondents admitted the claimant suffered an occupational disease.
To prove a compensable injury the claimant was required to prove that the conditions for which she sought workers’ compensation benefits were proximately caused by injuries arising “out of and in the course of” his employment. Section 8-41-301(1)(c), C.R.S. 2002; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions. Section 8-41-301(1)(b), C.R.S. 2002. Where the injury is occasioned by the nature of the employment and not a traumatic event, the injury is an “occupational disease.” See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
The claimant’s November 13, 2002, Application for Hearing endorses the issue of “compensability.” The respondents’ response to the application also endorses the issue of “compensability.” At the commencement of the hearing on March 12, 2002, the ALJ directed the parties to identify the issues for adjudication. In response, the claimant’s counsel stated, “It’s a full contest.” The respondents’ counsel agreed. (Tr. p. 3). Under these circumstances, we cannot the ALJ erroneously required the claimant to prove a causal connection between her employment activities and the CTS, or that the respondents formally agreed to waive their right to contest the issue and have the ALJ resolve it based on the evidence presented.
We do not dispute the claimant’s further contention that medical evidence is neither required nor determinative of the cause of a condition. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). To the contrary the claimant’s testimony, if credited, may be sufficient to establish the requisite nexus between the employment and the injury Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent expert medical testimony is presented, it is the ALJ’s sole prerogative to assess its weight and sufficiency. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Insofar as the medical testimony is conflicting, it is the ALJ’s sole prerogative to assess the probative weight of the various evidence and resolve the conflict. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, the medical evidence was subject to conflicting inferences. The ALJ resolved the conflict against the claimant based on his decision to credit the opinions of Dr. Palmer. There is substantial evidence in Dr. Palmer’s report (see Respondents’ Hearing Exhibit K) to support the ALJ’s determination that the claimant failed to prove she developed an occupational disease to her wrists. Therefore, the ALJ did not err in denying the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 26, 2003, 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, 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 August 15, 2003 to the following parties:
Connie Borsos, 3200 N. 5th, Canon City, CO 81212
Real Estate Lending Network, 1012 Main St., Canon City, CO 81212
American Family Insurance Company, P. O. Box 3328, Englewood, CO 80155
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Hurtado