W.C. No. 4-367-827Industrial Claim Appeals Office.
March 10, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant failed to prove a compensable injury and therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
On March 9, 1998, the claimant underwent surgery to repair a herniated lumbar disc. The claimant alleged that the proximate cause of the need for surgery was work-related injuries on November 24, 1997 and December 28, 1997.
The ALJ determined that the claimant failed to prove that the work-related incidents either separately or in combination caused the claimant’s herniated disc or the subsequent need for surgery. In support, the ALJ made the following findings of fact. In October 1997 the claimant began suffering low back pain after surfing in Hawaii. The claimant then flew from Hawaii to California and drove from California to Colorado to begin employment as a ski lift operator for the respondent. The claimant did not perform any job duties for the respondent before November 7, 1997.
On November 5, 1997, the claimant was treated by Dr. Ward for low back pain. Dr. Ward testified that the claimant reported a history of low back pain 3-4 weeks which progressively worsened and began radiating into his left leg. Dr. Ward also stated that the claimant’s symptomatology was consistent with a bulging lumbar disc. On November 6, 1997, the claimant sought back treatment from Dr. Johnson. The respondent’s witness, Ms. Katsoulis testified that when the claimant reported for work at the ski lift he indicated that he had suffered a back injury while surfing which might require surgery.
The claimant testified that on November 22, 1997 he injured his back while reaching to grab a child who had fallen off the chair lift. However, the claimant did not report the injury to the respondent or his treating physicians.
On December 12, 1997, the claimant returned to Dr. Johnson who referred him to Dr. Corenman for a surgical consult. Dr. Corenman examined the claimant on December 17, 1997 and ordered an MRI which revealed a herniated disc at L4-5. Dr. Corenman prescribed lumbar steroid injections which the claimant began December 22, 1997.
The claimant testified that he reinjured his back on December 28, 1997 when a skier fell on him. The claimant terminated his employment on January 15, 1998 and underwent surgery to repair the lumbar disc on March 9.
On review the claimant concedes that he had a pre-existing back problem. He also does not dispute the ALJ’s finding that he failed to prove a causal connection between the November 24 work-related incident and the subsequent need for medical treatment. However, he contends that the ALJ erroneously failed to consider his argument that the December 28, 1997 work-related injury aggravated his pre-existing condition and caused the need for surgery. We disagree.
As argued by the claimant, the occupational aggravation of a pre-existing condition which results in the need for medical treatment is compensable. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Furthermore, the ALJ is not held to a crystalline standard in the articulation of his factual determinations. George v. Industrial Commission, 720 P.2d 624
(Colo.App. 1986).
The claimant’s arguments notwithstanding, the ALJ’s order reflects that he considered and rejected the claimant’s assertion that the work-related incidents caused a compensable aggravation of the pre-existing condition. See Conclusion of Law 2. The ALJ found that the:
“evidence establishes that the claimant was suffering persistent symptomatology prior to the December 1997 incident which had already been treated by doctors and for which surgery was a consideration. It is concluded that the December 1997 incident was coincidental in that it occurred during the time frame that the claimant was suffering persistent symptomatology but was not a causative factor in that symptomatology.”
Further, the ALJ determined that the claimant failed to prove that the symptomatology in this low back “which eventually lead to a surgical procedure was causally related to his job duties with the respondent-employer.” Summary Order dated August 27, 1998.
The ALJ’s findings of fact are amply supported by the medical records, the testimony of Ms. Katsoulis and the deposition testimony of Dr. Ward and Dr. Johnson. Consequently, the ALJ’s findings must be upheld on review.
The claimant’s remaining arguments have been considered and do not alter our conclusions. The absence of a medical recommendation for surgery before December 17, 1997, goes to the weight of Ms. Katsoulis’s testimony that the claimant reported a possible need for surgery during their conversation in early November 1997. However, the discrepancy did not preclude the ALJ from crediting her testimony and we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative value of her testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Furthermore, assuming, arguendo that Dr. Corenman wrote a note dated February 11, 1998, in which he attributed the claimant’s back condition to the November and December 1997 industrial injuries, the note is inconsistent with Dr. Corenman’s December 17, 1997 medical report. Within his sole prerogative, the ALJ implicitly resolved the conflict in favor of the December 17 report which related the claimant’s pain to a surfing injury exacerbated by a long driving trip. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is for ALJ to resolve internal inconsistencies in expert medical testimony and the ALJ may credit all, part, or none of a witness’ testimony); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988) (ALJ not required to cite disputed evidence before rejecting it as unpersuasive). Consequently, we need not consider the claimant’s argument concerning the veracity of the February 11 note.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 2, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean ________________________________ 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 10, 1999
to the following parties:
John Craven, 4648 Fulton Avenue, Sherman Oaks, CA 91423
Carrie Cathcart, Vail Associates, Inc., LWP Services, Inc., 575 Union Blvd., Suite 310, Lakewood, CO 80228
Amy L. Brewer, Esq., PO Box 2309, 111 Lincoln Avenue, Suite C, Breckenridge, CO 80424 (For Claimant)
Gregory Cairns, Esq., 3900 E. Mexico Avenue, Suite 1300, Denver, CO 80210 (For Respondents)
BY: _______________