W.C. No. 4-645-011.Industrial Claim Appeals Office.
June 1, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated October 16, 2006, that denied and dismissed the claimant’s claim for workers’ compensation benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant worked as a framer for the employer and sustained a subarachnoid hemorrhage on March 4, 2005. The claimant alleged the subarachnoid hemorrhage was caused by trauma or exertion, which arose out of his work. The claimant had previously suffered bilateral cerebral aneurysms that were caused by congenital defects. The claimant’s work had nothing to do with the development of the cerebral aneurysms. On March 4, 2005 the claimant worked a regular shift as a framer and towards the end of the workday moved some trusses, which weighed from 60 to 80 pounds. The claimant described this work as hard, but he did not have any difficulty dragging the trusses. The claimant testified he was struck on the head while moving one of the trusses. The claimant was taken immediately to North Suburban Medical Center for care. The triage nurse noted that there was no history of a trauma. A CT scan of the head showed a large bilateral subarachnoid hemorrhage. Dr. Heller at North Suburban Medical Center noted there were no signs of trauma causing this incident. The claimant was not treated for external head injuries at North Suburban Medical Center. The claimant was transferred to Swedish Hospital and there was no mention of treatment for an external head injury.
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Dr. Elliott performed a craniotomy to clip two distinct aneurysms. One of the aneurysms had ruptured and the other had not ruptured. There was nothing specific to the workplace that caused the need for the unruptured aneurysm to be fixed. The unruptured aneurysm was clearly preexisting and unrelated to the claimant’s work.
Dr. Elliot stated in a September 19, 2005 letter that it appears that the truss hitting the claimant’s head directly preceded the bleeding of the asymptomatic cerebralaneurysm. At the time of this statement Dr. Elliott made not mention of exertion being a causative factor. During his deposition, Dr. Elliott indicated that he no longer believed that a hit in the head by a truss caused the claimant’s aneurysm to bleed. In an evidentiary deposition on June 7, 2006, Dr Elliott proposed for the first time that exertion caused the hemorrhage. Dr. Elliot would only say he had a “sense” that exertion activity at work caused the claimant’s subarachnoid hemorrhage, even though he was repeatedly asked to express his opinion to a reasonable degree of medical probability.
In the claimant’s written claim for compensation he indicated that he was hit on the head by a 160 pound truss and sustained a massive head injury and had a blood clot. The claimant made no mention of exertion in his written claim. In his opening statement at hearing, claimant’s counsel conceded that the subarachnoid hemorrhage was probably not caused by trauma.
Dr. Rauzzino saw the claimant for an independent medical examination and opined that the claimant’s subarachnoid hemorrhage was not caused by being hit in the head by a truss and that the subarachnoid hemorrhage was in no way caused by his employment. The ALJ concluded that the claimant failed to present persuasive medical evidence to prove that he sustained a head trauma at work on March 4, 2005 or that a head trauma caused his subarachnoid hemorrhage. The ALJ rejected the claimant’s contention that his subarachnoid hemorrhage was caused by being hit on the head by a truss. The ALJ also rejected the theory that the exertion of moving the trusses caused one of the claimant’s cerebral aneurysms to bleed, resulting in a subarachnoid hemorrhage. The ALJ found that the claimant failed to present persuasive medical evidence in support of the alternative stress theory of causation.
On appeal the claimant contends the ALJ erred as a matter of law in denying the claim. The claimant argues that the ALJ erred in crediting the testimony of the respondent’s expert and that there is insufficient evidence to support the ALJ’s order. We disagree.
The claimant had the burden to prove his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-
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301(1)(c), C.R.S. 2006; Section 8-43-201 C.R.S. 2006. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
The claimant argues it is unrebutted that he was lifting and dragging heavy trusses prior to rupture of the aneurysm. However, the ALJ with record support noted that the claimant also had alleged he was hit on the head by one of the trusses. Tr. at 20. The worker’s claim for compensation alleged the claimant was hit on the head by a 160 pound truss and he sustained a massive head injury. Exhibit X. The ALJ found the claimant’s testimony was not credible.
The claimant relies on the medical opinion of Dr. Elliot who had early in the case expressed the opinion that it appeared that the truss hitting the claimant directly preceded the bleeding of an asymptomatic cerebralaneurysm. Exhibit T. The ALJ found there was an absence of medical evidence linking the claimant’s subarachnoid hemorrhage to the claimant being hit on the head by a truss. Dr. Heller, in discussing the claimant’s subarachnoid hemorrhage, noted there were no signs of trauma causing the incident. Exhibit D. During the claimant’s hospitalization at Swedish there was no mention of treatment for external head injury. Exhibit J P. The ALJ relied in part on the above evidence in determining that the claimant’s testimony that he suffered head trauma on the day of the incident was contradicted by the medical record.
The ALJ, in finding that Dr. Elliott’s opinions unpersuasive, noted that the doctor had first opined that work-related trauma caused the subarachnoid hemorrhage, but later changed his opinion and opined that it was his “sense” that work-related exertion caused the subarachnoid hemorrhage. Elliot Depo. at 11,34,35. The ALJ found that Dr. Rauzzino unequivocally and strongly opined that neither trauma nor exertion at work caused the claimant’s subarachnoid hemorrhage. Tr. at 46, 67; Exhibit U. The ALJ found Dr. Rauzzino’s opinions were more persuasive than Dr. Elliott’s opinions. The claimant’s arguments notwithstanding, there is substantial evidence in the
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medical record and the testimony of Dr. Rauzzino to support the ALJ’s finding that the claimant failed to sustain his burden to prove a causal connection between his subarachnoid hemorrhage and the employment. Consequently, the existence of other evidence, including Dr. Elliott’s testimony which, if credited, might support a contrary determination, does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28
(1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340
(Colo.App. 1981) (expert medical evidence not dispositive of causation).
The claimant also contends that the ALJ erred in admitting into evidence an article from the New England Journal of Medicine. The claimant objected to the introduction into evidence of the article at the time of the hearing. Tr. at 48-63. The claimant argues that there was nothing in the article regarding the risk of exertion rupturing an aneurysm. The ALJ has wide discretion to control the course of the hearing and to make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2006; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not interfere with the ALJ’s determination in the absence of a clear abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s determination “exceeds the bounds of reason.” Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985).
The Colorado rules of evidence (CRE) apply to workers’ compensation hearings. Section 8-43-210 C.R.S. 2006. Dr. Rauzzino identified the New England Journal of medicine as a reliable authority in medical science and the ALJ admitted the article into evidence CRE 803(18). The article is entitled “Unruptured Intracranial Aneurysms — Risk of Rupture and Risks of Surgical Intervention”. Exhibit Y. In our opinion the claimant’s argument that the article does not address the causes of an aneurysm bursting, but instead merely lists some risk factors and is not complete because it excludes sexual intercourse, goes to the weight of the evidence and not its admissibility. We cannot say that the ALJ, by allowing the article into evidence abused his discretion.
The claimant next contends that the ALJ erred in crediting the testimony of the respondent’s medical expert, Dr. Rauzzino. We first note that we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). In particular, we note that the weight and
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credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Dr. Rauzzino is licensed to practice medicine in Colorado and the claimant stipulated that he was an expert in neurosurgery. Tr. at 34. The claimant argues that Dr. Rauzzino agreed that the exertion of sexual intercourse could cause an aneurysm to rupture, but refused to answer the question as to other types of exertion such as lifting heavy trusses. However, as the respondents point out, Dr. Rauzzino testified that the act of intercourse and the acts of pulling trusses are dissimilar. Tr. 71. In addition, Dr. Rauzzino testified that there was no medical evidence to support the suggestion that exertion was a risk factor for causing a rupture of an aneurysm that causes a subarachnoid hemorrhage. Tr. 69 70. To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). We cannot say that the ALJ abused his discretion in crediting the testimony of Dr. Rauzzino.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 16, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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Matias Calva, Platteville, CO, Elvis Construction Elvis De La Cruz 4270 Durham Court Denver, CO, Pinnacol, Assurance Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).
Castaneda Law Office Janie C. Castaneda, Esq., Denver, CO, (For Claimant).
Ruegsegger, Simons, Smith Stern LLC Thomas M. Stern, Esq., Denver, CO, (For Respondents).
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