W.C. No. 4-473-196Industrial Claim Appeals Office.
August 29, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove a compensable occupational disease and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
In June 1999 the claimant began working 20-24 hours a week as a customer service representative for the employer. The job required the claimant to sit at a desk, answer the telephone and perform computer entries. In June 1999 the claimant had significant pre- existing medical problems resulting from motor vehicle accidents, and falls. In fact, in June 1999 the claimant sought treatment for shoulder/neck pain due to a fall approximately 2 weeks earlier.
In March 2000 the claimant began complaining of neck pain. In April 2000 the claimant was diagnosed with a herniated disc in the cervical spine. The claimant subsequently filed a claim for workers’ compensation benefits. The claimant alleged her pre-existing cervical condition was aggravated by an ergonomically incorrect work station and repetitive flexion of the cervical spine required by her job duties.
On conflicting medical evidence, the ALJ found the employment did not cause or aggravate the cervical condition for which the claimant sought treatment. Therefore, the ALJ determined the claimant failed to sustain her burden to prove a compensable occupational disease. The claimant timely appealed.
Relying on the opinions of Dr. Rook, the claimant contends the record demonstrates the employment aggravated her pre-existing condition. Therefore, the claimant contends the ALJ erroneously determined she failed to prove a compensable injury. We disagree.
A compensable injury is an injury which “arises out of” and “in the course of” employment. Section 8-41-301 C.R.S. 2001; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). An injury arises out of and in the course of employment when the origins of the injury are sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the employee’s services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
A compensable injury may result from the aggravation of a pre-existing non- occupational condition. H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990). Where the aggravation is the result of a prolonged exposure occasioned by the nature of the employment and not an event traceable to a particular time, place and cause, the new injury is an “occupational disease.” See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Section 8-40-201(14), C.R.S. 2001, defines an occupational disease as one resulting directly from the employment or the conditions under which the work was performed, is a natural incident of the work and is a result of the exposure occasioned by the employment, can be fairly traced to the employment as a proximate cause, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.”
Determination of whether the claimant’s pain is the result of a new injury or the pre- existing condition is one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2001. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta supra. Under this standard we must view the evidence in the light most favorable to the prevailing party, and accept the ALJ’s assessment of the sufficiency and probative weight of the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Where the medical evidence is subject to conflicting inferences, it is also the ALJ’s prerogative to resolve the conflicts and determine the inferences to be drawn. Metro Moving Storage Co. v. Gussert, supra. In so doing, the ALJ is free to credit one medical opinion to the exclusion of a contrary medical opinion. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
The claimant’s arguments notwithstanding, there is substantial evidence in the opinions of Dr. Ogrodnick, and Dr. Norrgran to support the ALJ’s finding that the claimant’s cervical problems are not causally related to the employment. Further, this finding supports the denial of benefits. Consequently, the fact that Dr. Rook’s testimony if credited, might support a contrary result is immaterial on review. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The claimant essentially requests that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the credibility of the various medical opinions. We have no authority to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we may not disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 22, 2002, 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 August 29, 2002 to the following parties:
Julie Davis, 6515 Northwind Dr., Colorado Springs, CO 80918
Current, Inc., 1005 E. Woodmen Rd., Colorado Springs, CO 80920-3181
Joe Barbara, Safeco Insurance Co. of America, PO Box 5687, Denver, CO 80217-5687
James A. May, Esq., PO Box 2940, Colorado Springs, CO 80901-2940(For Claimant)
Emily Hvizdos, Esq., 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903(For Respondents)
BY: A. Hurtado