W.C. No. 4-278-579Industrial Claim Appeals Office.
February 11, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), which denied his claim for temporary disability benefits and medical benefits. We affirm.
The issue in this case is whether the claimant’s disability and need for medical treatment since January 1996 is causally related to his compensable back injury of September 19, 1990. The ALJ found that, following the September 19 injury, the claimant was treated by Dr. Bruington, D.C., and Dr. Bishop, M.D. Dr. Bruington and Dr. Bishop diagnosed the claimant with a lumbar sacral strain, and Dr. Bruington released the claimant to regular employment on September 28, 1990. Dr. Bishop examined the claimant on September 26, and indicated the claimant should be able to return to normal duties in a week. Further, Dr. Bishop directed the claimant to return in a week if he was not better, but the claimant never returned to Dr. Bishop.
The claimant continued to work for the respondent-employer until June 1991. Thereafter, he was self-employed in an irrigation business. The claimant’s testimony was conflicting concerning the extent of the work he did for his firm. He admitted trying to do some of the repair work, but stated it “didn’t work out too well.” (Tr. p. 30).
In January 1996, the claimant sought an examination from Dr. Weinerman although he had not received any medical treatment since 1991. Dr. Weinerman diagnosed the claimant as suffering from a herniated disc at L5-S1, with “minimal bulging at L4-5.” When asked whether he could relate these findings to the September 1990 injury, Dr. Weinerman stated that the findings were “certainly related to his work,” although he could not specifically relate them to the date of the injury.
The ALJ noted that the claimant testified that he had sustained multiple aggravations of his back after the September 1990 injury. In view of this testimony, and Dr. Weinerman’s inability to relate the claimant’s findings to the date of the injury, the ALJ found that the claimant’s disability and need for treatment was “not naturally and proximately” related to the admitted injury, but was “due to subsequent work activities.”
On review, the claimant contends that the ALJ’s finding that the September 1990 injury is not the cause of the disability and need for treatment is not supported by substantial evidence in the record. In support of this contention, the claimant points out that Dr. Weinerman opined that it was “reasonable that [the claimant’s] work-related injury back in 1990, started the back problems.” The claimant also points out that Dr. Weinerman described the findings as evidencing an “old herniated disc.” Finally, the claimant relies on portions of his testimony in which he indicated that he never sustained any “new injury after the September 19 injury.” We find no error.
The question of whether the claimant proved a causal relationship between the 1990 industrial injury and the subsequent disability and need for treatment was one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Substantial evidence is “probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Where, as here, a party presents medical evidence concerning the issue of causation, it is the prerogative of the ALJ to assess the weight and credibility of such evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). To the extent the opinions of a physician contain inconsistencies, it is within the authority of the ALJ to resolve the inconsistencies by believing only part, or none of the evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968).
The claimant’s arguments notwithstanding, Dr. Weinerman’s opinions are subject to conflicting inferences. Although Dr. Weinerman indicated that it was plausible to associate the claimant’s condition with the 1990 injury, he admitted that the objective medical evidence does not positively establish that claimant’s 1996 back problem is connected with the injury. Under these circumstances, it was for the ALJ to resolve the inconsistency in Dr. Weinerman’s reports.
Further, Dr. Weinerman stated in his January 18, 1996 report that the claimant had “no intervening history of trauma or injury” between the 1990 injury and the date of the examination. However, as the ALJ found, the claimant testified that he had sustained numerous intervening injuries. (Tr. p. 17). Thus, there was substantial evidence in the record from which the ALJ could infer that Dr. Weinerman’s understanding of the claimant’s history was less than complete.
We recognize that the claimant’s testimony was inconsistent concerning the nature and significance of the intervening events. However, it was for the ALJ to assess the weight of the claimant’s testimony and credit that portion which the ALJ found believable. The
mere fact that the evidence might have supported contrary findings and conclusions affords no basis for appellate relief. City of Durango v. Dunagan, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 23, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed February 11, 1998 to the following parties:
Darrell Dean, 860 W. 1st Ave., Broomfield, CO 80020
Vicki Wiedenhamer and L. Wiedenhamer, 7268 Osceola St., Westminster, CO 80030-5229
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Dr., #280, Denver, CO 80209 (For Claimant)
David L. Smith, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For Respondents)
By: ________________________________