W.C. No. 4-473-029Industrial Claim Appeals Office.
January 31, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which awarded the claimant temporary disability and medical benefits. The respondents contend the evidence compels the conclusion that 50 percent of the claimant’s disability and need for treatment are unrelated to the industrial injury. We affirm.
In 1990 the claimant sustained an admitted injury to her right knee arising out of and in the course of her employment as a paramedic. She underwent surgery in March 1991. In April 1991 she sustained an injury to her left knee while undergoing therapy for the right knee. Subsequently, the claimant underwent multiple operations on both knees. In 1997 the claimant was released. The ALJ found that all of these injuries have been “handled” under this claim “without regard to issues of apportionment or causation.”
On December 14, 2001, the claimant underwent bilateral knee replacement surgery. She then sought compensation for the medical benefits and subsequent temporary total and temporary partial disability benefits. The respondents admitted liability for 50 percent of the benefits based on the theory that the surgery for the claimant’s left knee was not causally related to any compensable event, but to the natural progression of preexisting arthritis of the knee.
However, crediting the claimant’s testimony, the ALJ found the claimant’s heavy work as a paramedic caused a “rapid deterioration” in both of the claimant’s knees after 1997. The ALJ further found the claimant curtailed non-industrial activities which could have affected her knees. Under these circumstances, the ALJ concluded the claimant is entitled to unapportioned temporary disability and medical benefits.
On review, the respondents first contend the evidence does not support the ALJ’s decision to award unapportioned temporary disability and medical benefits. The respondents argue the evidence compelled the ALJ to find, at least with respect to the left knee, that the claimant’s need for surgery and disability were caused by the independent progression of preexisting arthritis, not any industrial injury. The respondents assert the record contains no medical evidence in support of the ALJ’s order, and that the ALJ disregarded medical evidence directly contrary to the conclusions. We are not persuaded.
Where, as here, the claimant alleges an occupational disease (aggravation of preexisting knee condition by activities of work), the claimant must prove the disease was directly and proximately caused by the employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1991). Of course, the fact that the claimant has a preexisting condition does not preclude compensability, and the claimant is entitled to benefits if she proves the conditions of employment aggravated, accelerated or combined with the preexisting infirmity to produce the disability and need for treatment. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Denver v. Hansen, 650 P.2d 1319 (Colo.App. 1982).
The question of whether the claimant proved the requisite causal relationship is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The issue is also one of fact when the evidence presents alternative theories, and the ALJ must determine which of two possible causes is responsible for the claimant’s condition. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001). Consequently, we must uphold the ALJ’s resolution of the causation issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Further, the ALJ is not held to a standard of absolute clarity when entering findings of fact and conclusions of law. The ALJ need only make findings concerning evidence which is found to be dispositive of the issues, and conflicting evidence is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The respondents’ suggestion notwithstanding, a finding of causation need not be proven or supported by expert medical evidence. Rather, pertinent lay testimony may support a finding of causation despite conflicting medical evidence or testimony. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). The ALJ is under no obligation to credit medical testimony, even if such testimony is unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
The respondents assert the ALJ made no findings concerning expert medical evidence suggesting the claimant had preexisting arthritis which degenerated of its own accord. However, the ALJ’s order implicitly rejects that evidence. Rather, based on the claimant’s testimony that she experienced knee pain while performing the heavy duties of her employment and ceased other activities which could have contributed, the ALJ inferred a relationship between the claimant’s employment and the degeneration of her knees. The claimant’s testimony, standing alone, was sufficient to support the ALJ’s inference.
In any event, the record contains some medical evidence tending to support the ALJ’s inference. Dr. Trumper testified the claimant had a preexisting congenital condition which predisposed her to developing arthritis of the knees. Further, he testified that high impact activities, such as kneeling and squatting “would tend to wear her knees out quicker than — than the average person because of this preexisting problem” (Trumper Depo. P. 9). As the ALJ found, the claimant performed these activities in her employment. Thus, some medical evidence supports the order, and the fact that other medical evidence tends to support a conflicting conclusion did not require the ALJ to reach a different conclusion.
It is true several physicians testified a claimant may experience pain although the underlying condition is not changing. However, this testimony was typically qualified by the statement that there is no “necessary” relationship between pain and the condition. (Eg. Trumper Depo. P. 18). Such testimony is not unequivocal and certainly does not compel a different result, even if credited.
Because we conclude substantial evidence supports the ALJ’s finding that both knee replacements are compensable, the respondents’ theory that they are liable for only half the benefits is without merit. This is not a case in which the ALJ found that the claimant’s disability and need for treatment are the result of an occupational disease having industrial and non-industrial causes. See Anderson v. Brinkhoff, 859 p. 2d 819 (Colo. 1993). Rather, the ALJ found the claimant’s disability and need for treatment result from the industrial aggravation or acceleration of the preexisting condition.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 4, 2002, 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,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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________January 31, 2003
to the following parties:
Judith Bratten, 1533 ECR 66, Wellington, CO 80549
Yvonne Chudd, Poudre Valley Health Care, 1024 S. Lemay Ave., Ft. Collins, CO 80524-3998
Denise Groves, Support Services, P.O. Box 3513, Englewood, CO 80155-3513
Regina M. Walsh Adams, Esq., 7251 W. 20th St., #G-2, Greeley, CO 80634 (For Claimant)
Anne Smith Myers, Esq., and Michelle N. Young, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
By: __________A. Hurtado__________