W.C. No. 4-432-678Industrial Claim Appeals Office.
July 11, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant sustained a compensable injury on or about January 14, 1998, while employed by respondent Aliron International, Inc. (Aliron). The respondents contend the ALJ’s findings of fact are not supported by substantial evidence, and the claimant failed to present medical proof of causation. We affirm.
On January 14, 1998, the claimant was employed as a chiropractor for Aliron. On that date, the claimant was lifting a patient when his left shoulder “popped” and he experienced a sharp pain. The claimant described subsequent events as follows:
“The next day it hurt a little bit. And by the day after that, it was a little achy, but it didn’t hurt any more — or, it hurt very little, so I didn’t even think about it.
On a couple, three occasions since then, the same thing has happened, when I’ve been lifting a patient, or pulling, and the shoulder would sting, or pop, right in the same location. And it would hurt for two or three days. And, then, it would quit hurting. And that went on until June — or May, 1999. And, again, I lifted a patient, and I was pulling on a patient, and it popped again, but this time, it didn’t quit hurting. The pain continued. And, so, by sometime in early June, I thought:
I need to go — this pain has been going on for a while, I need to see someone about it.” (Tr. pp. 13-14).
Commencing in October 1998, the claimant went to work as a chiropractor for a different employer, Cherokee Nations. Thus, at the time of the May 1999 incident, the claimant was no longer employed by Aliron.
In June 1999, the claimant was examined by Dr. Mahony who recommended an MRI. The MRI revealed a torn rotator cuff, and the claimant was required to undergo surgery. The claimant related his history to Dr. Mahony, and Dr. Mahony issued a report stating the claimant’s “history and exam were consistent” with a tear of the rotator cuff “while at work performing a chiropractic manipulation.” (Tr. pp. 28; Mahony Report, September 15, 1999).
Based on this evidence, the ALJ determined “the most reasonable finding and conclusion is that claimant partially tore the rotator cuff in January 1998.” The ALJ explicitly found the claimant may have done additional damage to the shoulder while employed by Cherokee Nations in May 1999, but concluded the initial injury was done in January 1998 “as evidenced by the continuing problems.” Thus, the ALJ concluded the treatment rendered by Dr. Mahony and his referrals was reasonable and necessary to cure and relieve the effects of the January 1998 injury, and ordered payment for the treatment.
On review, the respondents contend there is not substantial evidence to support the ALJ’s findings of fact concerning causation. Specifically, the respondents contest Finding of Fact 3, in which the ALJ stated the claimant suffered two temporary increases in left shoulder pain (after the January 14, 1998 incident) while employed by the “respondent- employer,” Aliron. The respondents argue there is no evidence to establish the claimant sustained any increases in pain while employed by Aliron. The respondents further contend the ALJ erred in finding that the temporary increases in pain lessened to a mere “ache.” Rather, the respondents assert the claimant experienced no pain after the temporary aggravations. We find no error.
The question of whether a particular condition is the result of an industrial injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Similarly, the question of which of two employments was the cause of a particular injury is one of fact F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1995).
Because these issues are factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Wal- Mart Stores, Inc. v. Industrial Claims Office, supra. Even erroneous findings of fact do not mandate interference with an order if the erroneous findings do not affect the substantial rights of the parties. Section 8-43-310, C.R.S. 1999.
We agree with the respondents that the evidence does not support Finding of Fact 3 insofar as the ALJ determined the claimant sustained at least two post-injury increases in pain while employed by Aliron. However, we also agree with the claimant that this error is harmless. The critical findings are that the claimant tore his rotator cuff in January 1988 while employed by Aliron, and that this injury necessitated the medical treatment. Indeed, the ALJ explicitly recognized that at least one of the post-injury aggravations occurred while the claimant was employed by Cherokee Nations, but the ALJ was unpersuaded the May 1999 incident or any other occurrence constituted an efficient intervening cause of the claimant’s need for treatment.
Further, we do not perceive any error in Finding of Fact 3 to the extent it states the claimant’s pain lessened to an “ache” after two or three days. Literally, this is a correct recitation of the claimant’s testimony. Moreover, we do not understand the ALJ to imply the claimant experienced ongoing “aches” after the initial recurrences of pain. This is true because Finding of Fact 5 states that after the May 1999 incident the claimant experienced “chronic pain in his left shoulder.” Thus, the ALJ recognized the pain was continuous after May 1999 incident, but not before.
The respondents also argue the claimant failed to present medical evidence of causation, and in the absence of such evidence the award is based on speculation. We disagree.
Initially, we note that the claimant need not present medical evidence in order to establish that his condition is related to the January 1998 industrial injury. Rather, the ALJ may rely on circumstantial evidence, including the claimant’s testimony Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). However, to the extent medical evidence is presented, it is for the ALJ to assess its weight and credibility.
The respondents’ argument notwithstanding, the claimant did present evidence of medical causation. The claimant testified that he related his medical history to Dr. Mahony. Based on that history, Dr. Mahony opined the claimant sustained a work-related injury while lifting a patient. The ALJ was free to credit this evidence, and therefore, the award is not based on speculation.
IT IS THEREFORE ORDERED the ALJ’s order dated January 7, 2000, 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. 1999. 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 July 11, 2000
to the following parties:
Patrick M. Casey, 1431 Acacia Dr., Colorado Springs, CO 80907
Aliron International, Inc., 5225 Wisconsin Ave. N.W., #513, Washington, DC 20015-2014
Mary Ann Donelson, The Hartford, P. O. Box 22815, Denver, CO 80222
Dale W. Pedersen, Esq., 3 S. Tejon, #205, Colorado Springs, CO 80903 (For Claimant)
Randy Kotel, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
BY: A. Pendroy