W.C. No. 4-223-464Industrial Claim Appeals Office.
September 14, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her claim for medical benefits. The claimant contends the evidence does not support the ALJ’s determination that the claimant’s need for medical treatment, including spinal surgery and psychological care, is unrelated to one or more industrial injuries or occupational diseases. We affirm.
In these consolidated workers’ compensation cases, the claimant alleges she sustained a compensable back injury on July 1, 1994, a second back injury on June 18, 1996, and an industrial injury or occupational disease in April 1998. Further, the claimant asserts that the injuries individually or in combination caused the need for a spinal fusion at L5-S1, as well as the need for treatment of accompanying depression.
The ALJ found the claimant sustained a compensable back injury on July 1, 1994, and an admitted back injury on June 18, 1996. However, the ALJ found that neither one of these injuries caused the claimant’s need for surgery and treatment of depression. In support, the ALJ credited the report of the respondents’ medical expert, Dr. Lindenbaum, who opined the claimant’s “symptoms are compatible with disc disease at L5-S1” and that her “chronic psychological problems” are unrelated to this condition. The ALJ also found the medical records reflect the claimant had a long history of back pain, failed to present any medical records concerning treatment for the 1994 injury, and that the claimant was released without restrictions or impairment following the 1996 injury. Finally, the ALJ relied on the absence of medical records between August 1996 and February 1999 in which the claimant connected her need for treatment to any work-related injury.
The ALJ further found the claimant failed to prove she sustained a work-related injury or occupational disease in April 1998. The ALJ noted the claimant began treatment for back pain in March 1998, did not report her back pain was related to any specific incident, and did not report a work-related injury in accordance with the employer’s policy. Indeed, despite extensive treatment in 1998 and 1999, the medical records do not document any alleged relationship between the claimant’s symptoms and her employment until at least March 1999. Finally, the ALJ credited evidence the claimant performed only light work following the 1996 injury and expressly discredited medical reports supporting the claimant’s position.
In her brief, the claimant has listed five separate issues for review. However, four of these issues relate to the sufficiency of the evidence to support the ALJ’s findings that the claimant failed to prove a compensable injury or occupational disease occurring in April 1998, and that none of the claimant’s compensable injuries was the cause of the need for surgery and psychological treatment. In essence, the claimant argues the reports of Dr. Ryan, Dr. Jamrich, and Dr. LaCerte, Psy. D., compelled the ALJ to award medical benefits. The claimant also argues the ALJ erroneously relied on the opinions of Dr. Lindenbaum because he is not currently practicing medicine and because his opinions concerning depression are beyond the scope of his specialty. We find no error.
The claimant was required to prove that her need for medical treatment was proximately caused by an injury or occupational disease arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2000; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The questions of whether the claimant proved a work-related injury or occupational disease, and whether the injury or disease was the cause of the need for treatment, are issues of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra; City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997).
Because these issues are factual nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In particular, we note the relative weight and credibility of expert medical opinion on the issue of causation are matters within the ALJ’s province as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
The claimant’s assertion notwithstanding, the evidence did not compel the ALJ to credit the opinions of Dr. Ryan, Dr. Jamrich, and Dr. LaCerte. As the ALJ found, the opinion of each of these physicians was weakened by evidence the claimant had significant back pain prior to sustaining the first industrial injury in 1994, and by the lack of medical records corroborating the claimant’s assertion that she sustained an occupational disease or injury in April 1998. Moreover, the opinion of these physicians was contradicted by Dr. Lindenbaum who attributed the claimant’s ongoing symptoms to degenerative disc disease and considered the claimant’s industrial injuries in 1994 and 1996 as mere “exacerbations” of the underlying condition. Moreover, as the ALJ recognized, there is little contemporaneous medical evidence indicating the 1994 injury resulted in any permanent injury. Further, after the 1996 injury the claimant was released without restrictions and without a finding of permanent impairment. Under these circumstances, we must decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the weight and credibility to be assigned the opinions of the medical experts.
Further, we see no basis to interfere with the ALJ’s reliance on the opinions of Dr. Lindenbaum. The claimant made no contemporaneous objection to consideration of Dr. Lindenbaum’s report. Therefore, the claimant waived any potential objection to Dr. Lindenbaum’s qualifications to render expert opinions on medical topics, including depression. C.R.E. 103(a)(1) (error may not be predicated upon a ruling admitting evidence unless a timely objection or motion to strike appears of record). Absent a motion to strike, it was for the ALJ to evaluate Dr. Lindenbaum’s qualifications in deciding what weight to assign his testimony.
Furthermore, the claimant is mistaken insofar as she asserts the ALJ denied and dismissed all of her claims. The ALJ merely determined the claimant failed to prove she sustained any compensable injury or occupational disease in April 1998. The ALJ found the claimant succeeded in proving a compensable injury in July 1994, but failed to prove the 1994 injury caused the need for the disputed treatment. The ALJ also found the 1994 injury was not a cause of the need for treatment even if considered in conjunction with the admitted 1996 injury.
Finally, we perceive no error in the ALJ’s reliance on findings of fact and conclusions of law which the claimant asserts were prepared by the respondents’ counsel. We note the findings in this case were signed by the ALJ prior to the effective date of the current version of § 8-43-215(1), C.R.S. 2000. Thus, we do not consider the effect of that statute in responding to the claimant’s argument. Further, the ALJ’s specific findings were prepared in accordance with an extensive summary order prepared by the ALJ. Thus, this is not a case in which the claimant’s rights have been violated by counsel’s preparation of the specific findings and conclusions of law. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966).
IT IS THEREFORE ORDERED the ALJ’s order dated December 13, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 14, 2000 to the following parties:
Kathy C. Davis, 210 Frankies Ln., Ashdown, AR 71822
Julie Wonder, Wal-Mart Stores, Inc., 4401 S. Buckley Rd., Aurora, CO 80015
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Karen Goad, Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy