W.C. No. 4-445-608Industrial Claim Appeals Office.
April 10, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed the claim for workers’ compensation benefits based on an alleged occupational disease. The claimant argues the ALJ was bound by the treating physician’s opinion that the claimant sustained a compensable injury. The claimant also contends the ALJ failed to comply with our Order of Remand, that the findings are insufficient to support appellate review, and that the findings are not supported by substantial evidence. We affirm.
Our Order of Remand, dated July 1, 2001, contains an outline of the facts. That statement of the facts is incorporated herein. Our order directed the ALJ to determine whether the claimant’s disability, commencing in December 1999, was the result of the natural progression of a preexisting nonindustrial gunshot wound, or was partially the result of an aggravation of that condition. If the ALJ found there was an aggravation, she was directed to determine whether “to some reasonable degree” the aggravation was caused by prolonged standing during the claimant’s employment. If there was an industrial aggravation, the ALJ was directed to determine whether the respondents proved the extent to which non-industrial hazards contributed to the claimant’s disability.
On September 26, 2001, the ALJ entered an order which again denied and dismissed the claim for workers’ compensation benefits. Crediting the testimony of Dr. Primack, a physician who examined the claimant at the respondents’ request, the ALJ found the nonindustrial gunshot wound caused a spinal cord injury. The spinal cord injury, in turn, caused degenerative damage to the nerves affecting the claimant’s lower extremities. Thus, in Dr. Primack’s opinion, the claimant exhibited symptoms of Type II Complex Regional Pain Syndrome (CRPS) for four years before December 1999. Further, the ALJ credited Dr. Primack’s opinion that the claimant’s employment did not “cause or aggravate” the symptoms of the claimant’s condition. Under these circumstances, the ALJ concluded the claimant failed to carry his burden of proof to establish that he suffered an occupational disease which was proximately caused by the hazards of employment.
I.
The claimant reiterates the argument the ALJ was bound to accept the treating physician’s opinion that the claimant’s disability, commencing in December 1999, was the result of CRPS proximately caused by standing on the job. We previously rejected this argument holding the determination of whether the claimant proved an injury arising out of and in the course of employment is a threshold issue, and the claimant bears the burden to prove causation by a preponderance of the evidence Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). The claimant advances no argument which persuades as to depart from our prior reasoning, and we fully incorporate that reasoning in this order.
Additionally, we note the Court of Appeals recently held the opinion of a Division-sponsored independent medical examination (DIME) physician is not entitled to “presumptive effect” when the claimant seeks to reopen based on a worsened condition allegedly caused by the industrial injury. The court reached this conclusion even though the claimant attempted to classify the issue as one involving maximum medical improvement (MMI). The court stated “the opinions of a DIME physician have only been given presumptive effect when expressly required by the statute.” Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). In our view, Cordova supports our conclusion that the opinions of treating physicians are not entitled to any “presumptive effect” except on the issues of MMI, medical impairment, and the claimant’s ability to return to employment. Sections 8-42-107(8)(b) and (c), C.R.S. 2001; §§ 8-42-105(3)(c) and (d), C.R.S. 2001. However, nothing in the statute requires the ALJ to give “presumptive effect” to a treating physician’s opinion on the threshold issue of whether the claimant proved an injury proximately caused by an injury arising out of and in the course of employment. Section 8-41-301(1)(c), C.R.S. 2001.
II.
The claimant next contends the ALJ’s findings concerning causation are unsupported by substantial evidence in the record. Essentially, the claimant attacks the ALJ’s reliance on the opinions of Dr. Primack, arguing his opinions are internally inconsistent. The claimant also asserts the ALJ improperly discredited the testimony and opinions of the treating physicians, including Dr. Griffis. We perceive no error.
The claimant was required to prove an occupational disease directly and proximately caused by the conditions of employment. Section 8-40-201(14), C.R.S. 2001; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant met the burden of proof was one of fact for determination by the ALJ Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
It is true that a compensable occupational disease may result from the aggravation or acceleration of a preexisting condition. Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the question of whether a particular disability is the result of the natural progression of a preexisting condition, or the subsequent aggravation or acceleration of that condition, is itself a question of fact. University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001). Further, the mere fact the claimant experiences symptoms while performing work does not require the inference there has been an aggravation or acceleration of a preexisting condition. Rather, such symptoms could represent the “logical and recurrent consequence” of the preexisting condition. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in record. Section 8-43-301(8), C.R.S. 2001. 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. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Thus, to the extent the record contains conflicting medical opinions concerning the issue of causation, it was the ALJ’s prerogative to resolve the conflicts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Moreover, the ALJ was free to resolve internal inconsistencies within the testimony of a single witness. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The claimant argues Dr. Primack’s opinions that the claimant’s condition was attributable to the 1990 gunshot wound, and was not aggravated by standing on the job in 1999, is inconsistent with his testimony that standing could “load” the claimant’s joints and “accelerate” degeneration. (Tr. pp. 81, 83, 90). However, Dr. Primack also testified the claimant’s employment did not aggravate the claimant’s chronic radiculopathy and degenerative condition. Rather, he opined that, at most, standing on the job caused the claimant to experience subjective symptoms of the underlying condition without aggravating the condition. (Tr. pp. 101, 104-105). To the extent Dr. Primack’s testimony was subject to conflicting inferences, the ALJ resolved the conflict in favor of the respondents. The conflict certainly did not render Dr. Primack’s opinions incredible as a matter of law.
The claimant also argues Dr. Primack incorrectly testified the claimant could not have Type I CRPS because the claimant sustained a “big nerve injury” from the gunshot wound. (Tr. p. 75). The claimant points out the Medical Treatment Guidelines state that Type I CRPS may result from central nervous system lesions and other nerve injuries such as entrapment neuropathies. Rule of Procedure XVII, Exhibit D (II) (A) and (C) (2) (c), 7 Code Colo. Reg. 1101-3. However, the totality of Dr. Primack’s testimony is that the claimant’s symptoms are most consistent with Type II CRPS, a condition frequently associated with major spinal injuries and formerly known as causalgia. (Tr. p. 75). Thus, the ALJ reasonably understood Dr. Primack’s testimony to mean that, given the claimant’s symptoms and history of major spinal injury, he did not have Type I CRPS. The ALJ need not have understood Dr. Primack to testify that Type I CRPS is never associated with a nerve injury.
The claimant’s argument the ALJ should have credited the opinions of the treating physicians is without merit. The ALJ acted within her authority when evaluating the credibility of Dr. Griffis based, in part, on his lack of familiarity with the different types of CRPS, and his failure to diagnose a particular type of CRPS. Indeed, the ALJ weighed the opinions of Dr. Griffis against those of Dr. Primack, and found that Dr. Primack exhibited greater technical knowledge and expertise, and a greater understanding of the claimant’s medical history. (Finding of Fact 14, Conclusions of Law pp. 5-7). Under these circumstances, we may not substitute our judgment for that of the ALJ concerning the relative weight to be assigned the opinions of the medical experts.
III.
The claimant also contends the ALJ’s findings are insufficient to permit appellate review, and insufficient to comply with our order of remand. We disagree.
And ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law. Rather, it is sufficient if the ALJ enters findings with respect to the evidence she finds dispositive of the issues involved, and those findings are sufficient to inform the appellate body of the legal and factual basis for the ALJ’s decision Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
Here, the ALJ made express credibility determinations resolving conflicts between the medical experts, and pointed to other historical evidence supporting the inference that the claimant’s disability was caused by the 1990 gunshot wound rather than an occupational disease sustained in 1999. Further, these findings are supported by the record, and support the ALJ’s ultimate conclusion that the claimant failed meet his burden of proof on the issue of causation. It follows the ALJ’s findings are sufficient to provide a basis for appellate review.
Further, the ALJ fully complied with our Order of Remand. The ALJ expressly found “that the Claimant’s condition was not aggravated to some reasonable degree, by the standing duties he performed at King Soopers.” The ALJ also explicitly rejected the claimant’s argument “that his standing on the job is the cause of the worsening in his condition.” Rather, the ALJ entered detailed findings of fact determining the claimant’s condition deteriorated due to the natural consequences of the gunshot wound. Thus, the ALJ complied with our directive to determine whether “the claimant’s disability commencing in December 1999 was entirely the result of the natural progression of the gunshot wound, or, in the alternative, was partially the result of an aggravation of that condition” caused by standing in the employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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. 2001. 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 April 10, 2002 to the following parties:
Steven P. Chasteen, 4957 Artistic Pl., Colorado Springs, CO 80917
King Soopers, Inc., W.C. Dept. 827, P. O. Box 5567 T. A., Denver, CO 80217
Kim Reiner, RSKCo/King Soopers, Inc., P. O. Box 5567 T. A., Denver, CO 80217
Richard E. Falcone, Esq., 3510 Galley Rd., #110, Colorado Springs, CO 80909 (For Claimant)
Lawrence D. Blackman, Esq., and Lynda S. Newbold, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondent)
BY: A. Pendroy