W.C. No. 4-730-120.Industrial Claim Appeals Office.
August 18, 2008.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated March18, 2008, that denied and dismissed his claim for compensation. We affirm.
The ALJ’s findings are summarized as follows. The claimant felt pain in his back at work while pushing on a cable with his left foot on July 5, 2007. He had been sitting on a grate with his legs extended in front of him and pulling electrical cable up through the grate. The claimant later noticed some pain radiation while pressing on the cable with his foot. Dr. Dallenbach examined the claimant later that day and concluded that the claimant’s complaints of pain were not related to his work.
Dr. Lesnak examined the claimant and his medical history and also concluded that the claimant’s symptoms were not related to his work. Instead, Dr. Lesnak opined that the claimant suffered from a muscle spasm. Dr. Lesnak further opined that the claimant had merely flexed his foot forward at the time of the incident, which would not cause either an injury or certain findings on the claimant’s MRI. Dr. Rook, on the other hand, opined that the claimant sustained a work-related injury. The ALJ credited the opinions of Drs. Lesnak and Dallenbach and found that the claimant had not sustained a compensable injury.
On appeal the claimant asserts that the ALJ’s findings of fact are not supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753
(Colo. 1995). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s
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assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). We note that expert medical opinion is not needed to prove causation where circumstantial evidence supports an inference of a causal relationship between the injury and the claimant’s condition. Savio House v. Dennis, 665 P.d. 141 (Colo.App. 1983). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
The ALJ expressly credited the opinions of Drs. Dallenbach and Lesnak. Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶ 7. Dr. Dallenbach authored a letter dated August 17, 2007, in which he states that he will “still stand by [his] original assessment.” Dr. Dallenbach also refers in his letter to an attached copy of his report of injury for the claimant dated July 25, 2007 that notes “no objective evidence for injury.” Exhibit 4. Dr. Dallenbach issued another report concerning his examination of the claimant on July 25, 2007. Dr. Dallenbach states in the report that he is “unable to detect physical findings which support injury.” Exhibit 4. Dr. Lesnak provided a written report for his independent medical evaluation of the claimant dated October 31, 2007. He states that the claimant “most likely sustained an acute, lumbosacral muscle spasm” and “merely plantar flexed his left foot while in a seated position.” He concluded that the incident “clearly does not constitute an occupational injury.” Dr. Lesnak opined that the claimant had no work-related injury or illness. Exhibit A at 7. We conclude that the ALJ’s dispositive findings of fact are supported by substantial evidence and, therefore, binding on review.
The claimant refers to various recorded accounts of the claimant’s physical activities at the time of the incident giving rise to his claim. He argues that the ALJ essentially erred in crediting certain medical opinions and rendered conflicting findings. The ALJ specifically found that “[a]t the time [the claimant] felt the pain he was not pulling on the cable but only pressing on the cable with his foot.” Order at 2, ¶ 2. Dr. Lesnak recorded his observations of the claimant reenacting the event at work:
He actually demonstrated this activity on my exam room floor. He states that he was sitting on the floor with both legs outstretched in front of him. He stated that he was not in the process of pulling electrical cable whatsoever, he merely plantar flexed his left foot onto the cable while attempting to keep it away from the edge of the metal grating. He stated that this action (such as pushing the gas pedal in a car) caused him to develop low back pain. There was no
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twisting, bending, or lifting activities associated with these symptoms.
Exhibit A at 6. The ALJ incorporated Dr. Lesnak’s observations and recitations of the claimant’s conduct in his findings. Order at 2, ¶ 6. It is for the ALJ to resolve conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). We find no inconsistencies in the ALJ’s resolution of the facts surrounding the claimant’s incident at work.
The claimant also notes that the ALJ did not expressly address the claimant’s testimony in his order. However, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant further asserts that the ALJ was required to address the issue of whether the muscle spasm suspected by Dr. Lesnak and as found by the ALJ was caused or aggravated by the claimant’s work duties. A compensable injury may be the result of an industrial aggravation of a pre-existing condition as long as the aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988) Henrie v. Henrie Chiropratic, Inc. W. C. No. 4-582-442 (November 9, 2004). The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2007; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met his burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999).
The respondents assert that the claimant failed to raise before the ALJ the question of whether the claimant suffered an industrial aggravation of a preexisting condition. See Kuziel v. Pet Fair, Inc., 948 P.2d 103, 105 (Colo.App. 1997) (certain issues not asserted before ALJ waived on appeal). However, the claimant discussed in his position statement Dr. Lesnak’s reference to a history of tight leg muscles, as well as the claimant’s lack of leg problems after an Achilles lengthening procedure until the event at work. Claimant’s Position Statement at 2. In any event, the ALJ made no findings as to an aggravation of
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a preexisting condition concerning the claimant’s legs. It is therefore apparent that the ALJ was not persuaded that the claimant sustained a compensable injury due to an aggravation of a preexisting condition. The existence of evidence which, if credited, might support a determination to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
The claimant’s remaining arguments do not persuade us to disturb the ALJ’s decision.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Thomas Schrant
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CASEY J DOROUGH, COLORADO SPRINGS, CO, (Claimant).
TIC THE INDUSTRIAL CO., Attn: ELLEN STANDISH, STEAMBOAT SPRINGS, CO, (Employer).
ZURICH AMERICAN INSURANCE CO, Attn: VALERIE BURKE, C/O: ZURICH NORTH AMERICA, KANSAS CITY, MO, (Insurer).
RICHARD E FALCONE, Attn: RICHARD E FALCONE, ESQ., C/O: ATTORNEY AT LAW, COLORADO SPRINGS, CO, (For Claimant).
THE KITCH LAW FIRM, Attn: MICHELLE L. PRINCE, ESQ., EVERGREEN, CO, (For Respondents).
ZURICH NORTH AMERICA, Attn: VALERIE BURKE, COLORADO SPRINGS, CO, (Other Party).
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