W.C. No. 4-673-718.Industrial Claim Appeals Office.
September 8, 2008.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated January 16, 2008, that denied and dismissed the claimant’s claim for benefits based upon a compensable occupational disease. We affirm.
A hearing was held on the issues whether the claimant sustained a compensable injury or occupational disease, and whether he was entitled to medical benefits and to temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked for the respondent employer as a mechanical equipment specialist until September 30, 2005, when he was discharged for excessive absenteeism and unsatisfactory job performance. Prior to his termination from employment, the claimant allegedly sustained two industrial injuries, which are not the subject of this claim. The claimant alleges that on April 27, 2002, he injured his low back while lifting at work. He was released to return to regular work with no permanent impairment and with maximum medical improvement anticipated on May 13, 2002. On October 4, 2002 the claimant injured his right shoulder, which is also a claim separate from this one. During his treatment for the shoulder injury, Dr. Charbonneau noted that the claimant had presented with “a host of orthopedic problems in the last two or three years.” In a January 6, 2003 report Dr. Charbonneau noted that the claimant had been diagnosed by Dr. Gray with fibromyalgia syndrome. The claimant’s personal physician, Dr. Clemens, also stated on July 14, 2003 and October 14, 2003 that other doctors had made “tentative diagnoses” of fibromyalgia. Dr. Kirchner performed a psychological evaluation in connection with the claimant’s chronic pain complaints, and concluded that the claimant suffered from chronic pain or fibromyalgia, insomnia, fatigue, and reduced social activities. Dr.
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Clemens referred the claimant to Jeffrey Donner, M.D., who proposed various treatment modalities, including injections, which the claimant’s health insurer refused to authorize. Dr. Donner also stated that the claimant’s degenerative disc disease was progressing, and he recommended surgery. Dr. Donner stated on June 1, 2006, that the claimant attributed his low back pain to his years of working as a mechanic, with its attendant lifting, twisting, and bending. Dr. Gregory Reichhardt performed an independent medical examination on September 26, 2008, and opined that the claimant’s condition was not related to his work at the employer’s, and that his back injury of 2002 resolved with no evidence of permanent impairment. The ALJ expressly credited Dr. Reichhardt’s opinions as persuasive. Dr. Gray also performed an independent medical examination and reported that the claimant’s condition was attributable to his 2002 injury and to the conditions of his work. The ALJ expressly rejected the opinions of Dr. Gray as not credible.
Based on her factual findings, the ALJ concluded that the claimant had failed to carry his burden of showing that he suffered from a compensable occupational disease. Accordingly, she denied and dismissed the claim.
The claimant appealed the ALJ’s order and argues that the ALJ erred in denying the claim. Essentially, the claimant takes issue with the ALJ’s determination to credit the opinions of Dr. Reichhardt over those of Dr. Gray. However, weighing the evidence is exclusively the function of the ALJ and we are unpersuaded that she committed reversible error in that respect here.
As noted, the claimant contended that his working conditions resulted in an occupational disease, which in turn caused his various symptoms. Section 8-40-201(14), C.R.S. 2007 defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and 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 the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need
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for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under §8-40-201(14), C.R.S. 2007 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought. Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2007; 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 testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review under the substantial evidence standard is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
We are unpersuaded by the claimant’s argument that there is “no reasonable explanation” for his condition except that his job duties resulted in an occupational disease and that therefore the ALJ was compelled to conclude that a compensable claim occurred. The factual record in this case is extensive and contains substantial medical testimony, much of it conflicting and subject to various inferences. The claimant’s argument is essentially that the only possible conclusion that could be drawn from the voluminous factual record in this claim was that the claimant suffered from an occupational disease. However, in thorough and extensive factual findings the ALJ weighed the competing evidence and fully explained her reasons for crediting Dr. Reichhardt’s opinions over those of Dr. Gray and over other conflicting evidence. Dr. Reichhardt’s opinions amply support the ALJ’s factual findings, which in turn support the conclusion that the claimant did not sustain an occupational disease. Moreover, the ALJ correctly stated the law and the various legal standards applicable to her determination. At bottom the ALJ was unpersuaded that the claimant carried his burden
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of showing that he suffered from an occupational disease. We may not usurp her fact-finding function by reweighing the evidence in an attempt to reach inferences different from those she drew from the factual record. The claimant on appeal has identified and summarized the evidence conflicting with Dr. Reichhardt’s opinions; however, the substantial evidence standard of review requires us to disregard contrary evidence. Therefore, the existence of evidence in the record from which the hearing officer could have drawn contrary inferences does not provide a basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 16, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
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TROY BURLEY, WHITEHALL, MI, (Claimant).
EASTMAN KODAK COMPANY, Attn: ANN GARBACZ, C/O: WORKERS’ COMPENSATION, ROCHESTER, NY, (Employer).
RING ASSOCIATES, PC, Attn: JESS PEREZ, ESQ., FORT COLLINS, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS,, Attn: DAVID J DWORKIN, ESQ., C/O: YORK, BENSON EVANS, PC, DENVER, CO, (For Respondents).
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