W.C. No. 4-375-211Industrial Claim Appeals Office.
October 7, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which denied her claims for temporary total disability and medical benefits as a result of industrial injuries which allegedly occurred on January 22, 1998, and January 31, 1998. The claimant contends the ALJ’s denial of benefits is contrary to the evidence. We affirm.
On January 22 and 31 the claimant was employed by the respondent Denver Post Corporation as a newspaper carrier and by Bank One in a clerical position. The claimant alleged that on the two dates in question she fell and injured her left shoulder while delivering newspapers. On February 27, 1998, the claimant underwent surgery for a tear of the left rotator cuff.
However, the ALJ denied the claim finding that the claimant’s need for rotator cuff surgery was caused by a pre-existing condition, not the alleged injuries. In support, the ALJ noted the claimant had been under active treatment for left shoulder pain since April 1997. Further, a July 1997 MRI revealed a “full thickness tear of the rotator cuff.” (Clarke Depo. p. 11). As a result, the treating orthopedist recommended surgery to repair the rotator cuff, and repeated the recommendation in October 1997. Nevertheless, the claimant refused surgery and continued to perform both of her jobs until she learned the Bank One job would end in February 1998. Then, the claimant elected to undergo surgery because she understood she would lose her private health insurance.
On review, the claimant contends the evidence does not support the ALJ’s conclusion that the need for surgery and the consequent disability were caused by a pre-existing condition. The claimant argues the testimony of the treating orthopedist establishes that the alleged injuries aggravated the claimant’s pre-existing condition so as to require surgery. We find no error.
It is certainly true that an industrial aggravation of a pre-existing condition can result in a compensable injury. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the question of which of two possible causes resulted in the need for medical treatment and the consequent disability is one of fact for determination by the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
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. 1999. Under this standard, the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the evidence are binding on review. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0028, September 30, 1999). In particular we note it is for the ALJ to assess the weight and credibility of expert medical testimony pertaining to the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, an MRI from July 1997 shows the claimant sustained a tear of the rotator cuff before January 1998. The treating orthopedist recommended surgery on two occasions prior to the date of the alleged industrial injuries. The claimant admitted to continuous shoulder pain since April 1997, and she testified she was hampered in the performance of her two jobs, prior to the alleged injuries. In our view, these facts constitute substantial evidence in support of the ALJ’s conclusion that the claimant’s decision to undergo surgery in February 1997 was causally related to the pre-existing condition, not the industrial injuries.
It is true that some evidence in the record, including portions of the orthopedist’s testimony, would support an inference the claimant aggravated her condition as a result of the falls in January 1998. However, the ALJ was not persuaded by this testimony, and we may not substitute our judgment for hers concerning the weight of the evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 13, 1999, it is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 7, 1999 to the following parties:
Edith L. Cockrell, 3218 W. 24th Ave., Denver, CO 80211
Denver Post Corporation, 1560 Broadway, Denver, CO 80202-6000
CNA Insurance, Attn: Lisa Biggs, P.O. Box 17369 TA, Denver, CO 80217
James A. May, Esq., 155 S. Madison St., Ste. 330, Denver, CO 80209 (For Claimant)
John M Lebsack, Esq., White Steele, P.C., 950 17th St., 21st Fl., Denver, CO 80202 (For Respondents)
BY: A. Pendroy