W.C. No. 4-607-701.Industrial Claim Appeals Office.
October 11, 2005.
FINAL ORDER
The respondents seeks review of an order dated April 18, 2005 of Administrative Law Judge Stuber (ALJ) that ordered the respondents to pay for the costs of the claimant’s fusion surgery without apportionment. The respondents contend that the record compels the conclusion that the cost of the surgery should be apportioned. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed as a telecommunications technician when, on January 28, 2004, he sustained an admittedly compensable injury to his low back. He had previously injured his low back twice, the first time in November 1990 and the second in January 2002. Following the 1990 injury the claimant underwent a laminectomy at the L4-5 level of his lumber spine in September 1991. The claimant was released to return to work and did so, working full-time in “different occupations.” Following the 2002 injury the claimant underwent various diagnostic tests and was diagnosed by Dr. Sceats as having herniated discs at the L4-5 and L5-S1 levels, with degenerative disc disease. Dr. Sceats performed surgical microdiskectomies at those levels. The claimant returned to work and was able to perform all the duties of his job. The ALJ found that he experienced no significant back problems between October 2002 and January 2004.
The ALJ found that the claimant sustained this injury in January 2004, when lifting and moving 40-pound tiles prior to installing cable in a crawl space. The claimant received some conservative treatment, following which an MRI revealed a disc herniation at the L4-5 level of his lumbar spine, in addition to severe spinal canal stenosis, further progression of the degenerative processes, and foraminal stenosis at L4-5. The claimant was examined by Dr. Bee, who diagnosed degenerative disc disease, spinal stenosis, low back pain, and bilateral lower extremity raiculopathy, and recommended surgical decompression and fusion. Dr. Beard reviewed the medical records at the request of the respondents, and opined that the proposed surgery was not reasonable or necessary, and was not related to the industrial injury. Dr. Lankenau performed an independent medical examination and stated that the industrial injury had caused a new disc herniation at L4-5, and that the onset of symptoms could be traced to the injury. He recommended further conservative care and questioned the propriety of including the L3-4 level in the surgical procedure.
The ALJ found that the proposed fusion surgery at three levels was reasonable and necessary to cure and relieve the effects of the industrial injury. The ALJ weighed the various expert opinions and found that the surgery should be performed at the L3-4 level as well as at the lower spinal levels. The ALJ rejected the respondents’ argument that the cost of the surgery should be apportioned, finding that the mult-level surgical fusion is necessary to treat the disc herniation at L4-5. The ALJ found that the industrial injury accelerated the need for the surgery, and that the claimant would not need to undergo the surgery had he not sustained the industrial injury. Accordingly, the ALJ denied the respondents claim that the surgery should be apportioned.
On appeal the respondents argue that the claimant’s need for a three-level fusion was caused by a “combination of factors” only one of which was this industrial injury and that, therefore, apportionment of the costs of the surgery was compelled. We are not persuaded that the ALJ erred.
It is proper to apportion liability for medical benefits if the claimant’s condition is caused by successive industrial injuries and both injuries contribute to the need for the medical treatment. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004). The question of causation is one of fact for the ALJ. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).
Because these issues are generally factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2005. Substantial evidence is that quantum of probative evidence that would support a reasonable belief in the existence of a fact without regard to conflicting evidence or inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). This standard of review requires us to view the evidence in the light most favorable to the prevailing party and to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. If the record supports two possible inferences, it is the ALJ’s prerogative to determine which inference to draw. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Moreover, the ALJ only need enter specific factual findings concerning the evidence he found to be dispositive, and conflicting evidence and inferences are presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). In resolving inconsistencies the ALJ may credit all, part or none of an expert’s testimony, and the ALJ’s failure to cite an expert’s opinion inherently reflects that the ALJ did not find it persuasive. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
As noted, the respondents argue that the current condition of the claimant’s spine at the L4-5 level resulted from “a combination of his previous industrial injuries, his degenerative spine condition, and the January 28, 2004, injury covered by this claim.” Respondents’ Brief in Support of Petition to Review at 7. However, insofar as the respondents argue that some portion of the cost of the surgery should be attributed to the “degenerative spine” and therefore apportioned, that argument is not supported by the present state of the law.
We have recently stated that Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004), does not authorize apportionment of medical benefits to a preexisting non-industrial condition where that condition is aggravated by, accelerated by, or combines with an industrial injury to produce the need for treatment. See Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005). In Weber we stated that:
We . . . do not read Duncan v. Industrial Claim Appeals Office, supra, as initiating a new rule of law which permits the apportionment of medical expenses to non-industrial conditions where the industrial injury combines with those conditions so as to cause the need for treatment. As Duncan itself recognizes, the prior cases allowing apportionment of medical expenses involve situations where the claimant sustained successive industrial injuries and those injuries actively contributed to the claimant’s current need for treatment.
In the absence of authority from the appellate courts holding otherwise, we are not persuaded to depart from this reasoning. We decline to interpret Duncan as permitting apportionment of medical costs attributable to non-industrial conditions.
Further, substantial evidence amply supports the ALJ’s finding that the disc herniation at the spinal level L4-5 was caused by the industrial injury that occurred in January 2004. Dr. Lankenau testified that following the January 2004 injury there was a “new herniation” present and that it “had to be considered work related because the symptoms began following a work related injury.” Tr. p. 42. The doctor added that the claimant’s reported symptoms were consistent with that pathology, and with the findings on diagnostic imaging tests. Tr. p. 42. Although Dr. Landenau then testified that he would apportion a percentage of the cause of the disc herniation at level L4-5 to the previous industrial injuries, the ALJ was not compelled to accept that testimony. In reaching his conclusion that the January 2004 injury caused the claimant’s need for surgery, the ALJ emphasized that the claimant had been asymptomatic for some time prior to the 2004 injury, that he had required no medical treatment immediately prior to that injury, and that no evidence was presented that he would have been required to undergo the fusion surgery at that particular time in the absence of the disc herniation caused by the 2004 injury. Given this record we are unable to conclude that the ALJ was compelled to apportion the cost of the fusion surgery at the L4-5 level to the prior factors.
The respondents also argue that the fusion surgery at the other levels should have been apportioned out of the medical costs for which they are liable. However, the ALJ’s finding that the fusion surgery at these levels was necessary to treat the disc herniation at L4-5 is supported by substantial, albeit conflicting, evidence. Dr. Landenau testified that, although he was uncertain whether to recommend including the L3-4 level in the surgery, he believed it was reasonable to include the lower level at L5-S1. Tr. p. 46. He also testified, however, that the purpose of the “three level fusion” was to attempt to correct the claimant’s back and leg pain. Tr. p. 46. Moreover, Dr. Bee stated in his report dated April 26, 2004 that he had presented the claimant’s case at a “Spine Conference” where it was discussed, and that the claimant would “best benefit” from including the L3-4 level in the surgical procedure. The ALJ could reasonably infer from the record in this case that the three level fusion was necessary to treat the disc herniation caused by his January 2004 injury. Under these circumstances, we decline to conclude that the record compelled the ALJ to apportion the costs of the surgery.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 26, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
Jeff Combs, Canon City, CO, STC Communications, Colorado Springs, CO, Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail, James A. May, Esq., Colorado Springs, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).