W.C. No. 4-277-302Industrial Claim Appeals Office.
March 31, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied his claim for medical benefits. We affirm.
The claimant sustained a compensable back injury in 1977, and had surgery. Since that time, the claimant has experienced numerous “aggravations” of his back condition.
At the hearing, the claimant testified that he sustained a compensable aggravation on October 13, 1995, while driving a truck for the respondent-employer. However, the claimant testified that his symptoms improved after October 13, and he was able to continue working. (Tr. pp. 38-39). It is undisputed that the claimant sought medical treatment on October 18, 1995, and subsequently it was discovered that he has a disc protrusion at the L4-5 level. (Petitioner’s Exhibit 3).
Under these circumstances, the ALJ found that the claimant failed to “meet his burden of establishing that any aggravation or exacerbation of his preexisting injury was caused by his employment with” the respondent. Further, the ALJ found that “any aggravation or exacerbation which did occur was temporary in nature.” Finally, the ALJ stated that the claimant “failed to meet his burden of establishing by a preponderance of the evidence that he sustained a permanent substantial aggravation of his preexisting condition.” Under these circumstances, the ALJ denied the claim for medical benefits.
On review, the claimant contends that the ALJ applied an incorrect legal standard because there is no requirement to prove a “permanent substantial aggravation” in order to obtain medical benefits for the alleged injury. To the contrary, the claimant argues that even temporary aggravations of preexisting conditions are compensable. We find no error.
We do not dispute the claimant’s legal argument that temporary aggravations of preexisting conditions are compensable See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981). Moreover, the “substantial permanent aggravation” language of § 8-41-304(1), C.R.S. (1996 Cum. Supp.), applies only when there is a dispute concerning which of multiple employers or insurers is liable for an occupational disease. See Robbins Flower Shop v. Cinea, 894 P.2d 63
(Colo.App. 1995).
Nevertheless, a claimant must prove that the alleged disability or need for treatment is causally connected to an injury sustained in his employment to receive workers’ compensation benefits. Section 8-41-301(1)(c), C.R.S. (1996 Cum. Supp.). The question of whether the claimant has proven causation is one of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0679, February 6, 1997); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here, the ALJ found as a matter of fact that the claimant failed to prove any relationship between his employment and the alleged aggravation of his preexisting back condition. (Findings of Fact 9, 10). If the evidence supports the ALJ’s finding, it is immaterial whether the ALJ erred in requiring that any proven aggravation be permanent and substantial. Cf. Cooper v. Delta County Memorial Hospital, W.C. No. 4-275-780, March 12, 1997.
However, the claimant contends that the record does not support the ALJ’s finding that he failed to prove a causal relationship between his employment and the exacerbation of his preexisting condition. In support of this proposition, the claimant cites his own testimony, as well as medical records from which it might be inferred that there is a relationship between the alleged injury of October 13, and the claimant’s subsequent need for treatment. We are not persuaded.
We must uphold the ALJ’s finding that the claimant failed to prove a causal relationship if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Substantial evidence is evidence which would support a reasonable belief in the existence of a fact without regard to contrary testimony or inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, the ALJ was unpersuaded by the claimant’s testimony that he sustained an injury at work on October 13. The ALJ apparently found this testimony unpersuasive because the claimant continued to work after the injury, and because the history which Dr. Duncan took on October 18 makes no reference to the claimant’s employment as a causative factor in the aggravation. It was the ALJ’s province to assess the weight and credibility of this evidence, and we decline the claimant’s invitation to substitute our judgment for his on this factual issue Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
The claimant’s final argument is that the ALJ erred in requiring him to prove causation to a reasonable degree of medical probability, rather than to a reasonable degree of probability. In support of this proposition, the claimant cites oral remarks which the ALJ made at the conclusion of the hearing. When addressing claimant’s counsel, the ALJ stated the following:
“What I’m asking you is: where does a doctor say within a reasonable degree of medical probability that this aggravation was caused by the bouncing up and down in the seat of a truck on August 13, 1995 [sic] when employed by this respondent-employer? That’s what I want to see.”
The claimant correctly states that he was required to establish causation within a reasonable probability. Eg. Morrison v. Industrial Claim Appeals Office, 760 P.2d 654
(Colo.App. 1988). However, it is equally true that, when expressing an opinion concerning causation, a medical expert must testify based upon the standard of reasonable medical probability. Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106 (1971).
The ALJ’s question to counsel during closing arguments did not constitute the ALJ’s application of the burden of proof in resolving the causation issue. The ALJ was merely inquiring whether the claimant could point to an expert medical opinion, based upon the applicable legal standard for admitting such evidence, which would support the claim for benefits. Moreover, the ALJ’s written order, which is the order under review, does not contain any indication that the ALJ misapplied the burden of proof in resolving the issue. Consequently, the claimant’s argument is without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 5, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petition uponthe Industrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed March 31, 1997 to the following parties:
Ricardo Cruz, 411 S. Court, #53, Ft. Collins, CO 80524
Dale Sipes, 3180 E. County Rd. 58, Ft. Collins, CO 80524
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Mac Hester, Esq., 211 West Myrtle, Ste. 103, Ft. Collins, CO 80521 (For the Claimant)
By: _______________________________