W.C. No. 4-532-594Industrial Claim Appeals Office.
April 29, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied the claim for benefits because the ALJ found the claimant failed to prove that his back condition was caused or aggravated by his work. The claimant asserts the pertinent findings of fact are not supported by the evidence, and that the record compelled the ALJ to find a compensable aggravation of a preexisting condition. We affirm the ALJ’s order.
The claimant alleged that heavy work as a landscaper caused him to develop disabling back pain in December 2001. However, the ALJ found the claimant failed to prove the back condition constituted a compensable injury, and that the claimant’s condition was more probably the result of the natural progression of preexisting back disease.
In support of this determination, the ALJ credited the testimony of the claimant’s supervisor that for six months before December 2001 the claimant was performing relatively light work as a supervisor. Further, the ALJ found the claimant’s testimony concerning the onset of the back pain was contradicted by the medical records. Finally, the ALJ noted the medical records established the claimant was diagnosed with L5 spondylolysis in 1993, and suffered from back pain for many years prior to December 2001.
On review, the claimant contends the undisputed evidence compelled the ALJ to find that the claimant’s work as a landscaper aggravated the preexisting back condition so as to cause a compensable occupational disease. In support of this contention, the claimant argues the evidence shows he was not restricted from performing landscaping work for 18 months before he became disabled in December 2001. Therefore, the claimant asserts there are no conflicts in the evidence which the ALJ could resolve so as to find the claimant’s disability was caused by the natural progression of the preexisting condition. The claimant also challenges the sufficiency of the evidence to support Finding of Fact 8 concerning the claimant’s employment, and the sufficiency of the evidence to support the ALJ’s decision to discredit the claimant’s testimony. We are not persuaded there is any error.
As a general matter, we do not dispute the claimant’s legal argument that the industrial aggravation or acceleration of a preexisting condition may result in a compensable occupational disease. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the claimant bears the burden of proof to establish that an alleged work-related aggravation was proximately caused by the claimant’s working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The determination of whether the claimant met the burden of proof is an issue of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Further, the question of whether particular symptoms result from a “new injury” or the natural progression of some preexisting condition is also a question of fact. See University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).
Because the issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. 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. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant’s argument notwithstanding, the ALJ was not compelled to find the claimant’s back pain and disability beginning in December 2001 was the result of an industrial aggravation of the preexisting condition. It is true, as the claimant argues, that he testified he was able to perform heavy work with relatively few symptoms for 18 months before December 2001, and that he experienced severe symptoms while carrying rock in December 2001. (Tr. Pp. 16-17). However, the ALJ discredited this testimony as proof of an industrial injury for several reasons. First, as the ALJ found, the claimant was diagnosed with a serious back condition in 1993 after reporting back pain since age 6. The physician who diagnosed the condition opined the claimant might experience back symptoms for the rest of his life and “may not require surgical intervention.” Further, the medical reports issued after December 2001 indicate the claimant gave a history of frequent bouts of back pain throughout his life. Dr. Benz reported a history of `intermittent back pain in the past.” Dr. Donner reported a history of “chronic progressive back pain which has progressed over the years.” Thus, there is ample evidence to support the ALJ’s determination that the medical records tend to discredit the claimant’s testimony concerning the origins and onset of his back condition. Although the claimant’s testimony was somewhat inconsistent, he himself admitted to a history of back pain since childhood. (Tr. P. 24).
Moreover, the ALJ was not persuaded that the claimant’s job was the cause of the back pain because the disabling pain developed in December 2001, many months after the claimant ceased heavy work as a landscaping laborer and began performing lighter work as a supervisor. Although the claimant portrayed the supervisor job as being at least as physical as the laborer job, this testimony was contradicted by the claimant’s supervisor. The ALJ credited the supervisor’s testimony over that of the claimant, and we are not free to interfere with that assessment of the evidence.
Insofar as the claimant asserts the ALJ misunderstood the nature of the supervisor job, we reject this argument. Finding of Fact 8 is amply supported by the supervisor’s testimony. (Tr. Pp. 35-37, 38).
It follows from this discussion that substantial evidence supports the ALJ’s factual determination that the claimant’s disabling back condition was caused by the natural progression of his longstanding back condition, and was not caused or aggravated by the employment. In this regard, we note that even if the claimant experienced symptoms of his back condition while employed by the respondent, the ALJ was not required to conclude the employment was the cause of the symptoms. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 29, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 29, 2003 to the following parties:
Andrew M. Cox, 484 Glen Rd., Grand Junction, CO 81501
Amy Lindgren, Lindgren Landscaping and Irrigation, P. O. Box 271273, Ft. Collins, CO 80527
Legal Department, Pinnacol Assurance — Interagency Mail
John M. Connell, Esq., and Susan A. Kraemer, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Claimant)
Jennifer Cavel, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
By: A. Hurtado