W.C. No. 4-606-563.Industrial Claim Appeals Office.
August 18, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which denied the claim for workers’ compensation benefits. The claimant contends the ALJ erred in finding that she failed to meet the burden of proof on the issue of causation. We affirm.
The claimant, a critical care nurse, sought medical benefits for treatment of a stress fracture of the second metatarsal of the right foot. The claimant was on sabbatical from her job from March 15 through June 15, 2003. In early April she stepped in a drain hole and injured her right foot. The claimant sought treatment for intermittent right foot pain on May 28, 2003, and was diagnosed as suffering from metatarsalgia and dermatofibroma.
The claimant returned to work on June 16 and began performing her duties which required substantial standing and “speed walking.” On June 17 the claimant noticed increased right foot pain when climbing stairs. On June 18 the claimant noticed right foot pain when crossing the parking lot, and substantial pain after tending to an ill patient for a prolonged period of time.
The claimant was examined by her personal physician at Kaiser on June 20. X-rays of the foot were performed but reported as negative. The Kaiser doctor referred the claimant to a podiatrist, and she chose to be examined by Dr. Paden. On June 24 Dr. Paden diagnosed a “suspected” stress fracture of the second metatarsal and returned the claimant to work with a walking boot. The claimant returned to work and was eventually weaned from the boot.
However, in February 2004 the right foot pain substantially increased and the claimant returned to Dr. Paden. An x-ray was positive for non-union or a stress fracture of the second metatarsal. The claimant was then returned to Kaiser where she was treated with a “Cam Walker” and bone stimulator. The claimant was able to continue her employment, but sought medical treatment for expenses associated with the stress fracture.
The ALJ found the claimant failed to prove that the stress fracture was caused or aggravated by her employment. Instead, the ALJ credited the testimony of the respondents’ medical expert, Dr. Hemler, who opined the claimant sustained a “bone bruise” when she stepped in the drain, and that this condition progressed to a stress fracture without regard to the claimant’s employment in June 2003. In support of this opinion Dr. Hemler noted the fracture was not in a location commonly associated with repetitive stress, but was more likely associated with trauma. The doctor also stated that “it would not surprise” him that the claimant experienced pain when she walked because she had reported intermittent pain when walking at the May 2003 Kaiser examination.
On review, the claimant contends the ALJ erred in finding that she failed to prove that the need for medical treatment was caused by the work-related aggravation of the bone bruise. The claimant also alleges the ALJ erred in relying on the opinions of Dr. Hemler because they were “speculative” and not based on a reasonable degree of medical probability. We are not persuaded.
The claimant was required to prove by a preponderance of the evidence that the need for treatment of the stress fracture was proximately caused by an injury or occupational disease arising out of and in the course of her employment. Resolution of this issue is usually one of fact for determination by the ALJ. Section 8-41-301(1)(c), C.R.S. 2004; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
The claimant correctly notes that if an industrial injury aggravates or accelerates a pre-existing non-industrial condition so as to cause a need for treatment, the claimant has sustained a compensable injury and respondents are liable for treatment caused by the aggravation. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, when a claimant experiences symptoms while at work it is for the ALJ to determine whether subsequent need for treatment was caused by an industrial aggravtion of a pre-existing condition or by the natural progression of the pre-existing condition. The mere experience of symptoms at work does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Resolution of that issue is also one of fact for the ALJ. 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 the record. Section 8-43-301(8), C.R.S. 2004. 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. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251
(Colo.App. 1999). In particular, we note that the weight and 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). 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).
The claimant’s assertion notwithstanding, Dr. Hemler’s testimony fully supports the ALJ’s findings and the conclusion that the claimant failed to carry the burden of proof. First, Dr. Hemler testified that his opinions were based on a “reasonable degree of medical probability.” (Tr. P. 87). Further, Dr. Hemler testified based on his review of the claimant’s medical records, his examination of the claimant, and his own qualifications as a medical expert. Under these circumstances the ALJ acted well within her discretion to admit and consider Dr. Hemler’s opinions on the question of causation. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122
(Colo.App. 1992) (expert may base opinions on assumptions which have a reasonable basis in the evidence and trier of fact vested with broad discretion in determining whether evidentiary basis for expert opinion has been satisfied).
Further, Dr. Hemler’s opinions support the ALJ’s conclusion that the claimant failed to prove the bone bruise or stress fracture was “accelerated” or “aggravated” by the claimant’s employment in June 2003. While Dr. Hemler did opine that walking could cause stress fractures, he testified that the location of the claimant’s fracture was more consistent with trauma (April drain incident), and that the occurrence of pain at work was not particularly significant since the claimant had pain with walking before she returned to work. (Tr. Pp. 120, 123). Further, he opined the claimant’s symptoms were probably caused by the natural progression of the April 2003 injury rather than any aggravation at work in June 2003. (Tr. P. 90, 102) While other interpretations of the testimony may be possible, the ALJ resolved any such inconsistencies against the claimant and we may not interfere with that determination.
Admittedly, there is some circumstantial evidence which could support a finding that the claimant’s activities at work aggravated or accelerated the “bone bruise” so as to result in the stress fracture. However, the evidence is conflicting and subject to various inferences, and in these circumstances we may not substitute our judgment for that of the ALJ. In light of this determination we need not reach the claimant’s other arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 2005, is affirmed.
Virginia C. Cotts, Wheat Ridge, CO, Exempla, Inc., Wheat Ridge, CO, Jason W. Houston, Sedgwick CMS, Greenwood Village, CO, Francis K. Culkin, Esq., Denver, CO, (For Claimant).
Brad J. Miller, Esq., Greenwood Village, CO, (For Respondents).