W.C. No. 4-264-842Industrial Claim Appeals Office.
December 22, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), which reopened the claim and awarded medical benefits. We affirm.
The ALJ found that, in August 1994, the claimant sustained a compensable injury to her right knee when she jumped into a swimming pool. The claimant’s treating physician, Dr. Horstman, performed arthroscopic surgery in March 1995. Apparently, the claimant was placed at maximum medical improvement and given an impairment rating in August 1995.
Following the March 1995 surgery, the claimant continued to experience pain and discomfort in her knee. In September 1996, she returned to Dr. Horstman who recommended that she undergo surgery called a “Maquet tibial tubercle elevation.” In a report dated March 5, 1997, Dr. Horstman stated that the Maquet procedure was “not performed in March of 1995 because [the claimant] did not satisfy the requirements to perform this procedure.” Dr. Horstman also stated that, in 1995, he believed the claimant might need future surgery because of increased “wear and tear.”
The claimant filed a petition to reopen seeking an order requiring the respondent to pay for the Maquet procedure. The ALJ granted the petition, and found that the “symptoms experienced presently in claimant’s right knee are directly related to and were caused by the admitted industrial injury of August 8, 1994.” In so doing, the ALJ stated that when Dr. Horstman performed the 1995 surgery he “thought at the time that the more radical Maquet procedure might prove necessary in the future.”
I.
On review, the respondent first contends that the evidence does not support the ALJ’s finding of a causal relationship between the 1994 injury and the need for the Maquet surgery. The respondent argues that the “overwhelming evidence” establishes that the need for the procedure is the result of the claimant’s preexisting knee disease. Alternatively, the respondent asserts that the claimant sustained a new injury or disease while working for different employers after the 1994 injury. We are not persuaded.
We do not dispute the respondent’s legal position that reopening based on worsened condition requires the claimant to prove a causal relationship between the worsened condition and the prior industrial injury. See Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1984). To carry this burden of proof, the claimant was required to establish that the need for the Maquet procedure was a natural and proximate result of the 1994 injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). The mere fact that the claimant had a preexisting knee disease did not preclude a finding of causation if the 1994 injury aggravated, accelerated, or combined with the disease to produce the need for surgery. See H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990).
The question of whether the claimant proved the requisite causal relationship is one of fact for determination by the ALJ. Accordingly, we are bound by the ALJ’s finding if supported by substantial evidence in the record. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); § 8-43-301(8), C.R.S. 1997. In order to establish causation, the claimant was not required to present medical evidence. However, to the extent such evidence was presented, it was for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Further, to the extent a medical opinion contained internal inconsistencies, it was for the ALJ to resolve the inconsistences by believing all, part, or none of the opinion. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
We disagree with the respondent that there is “no medical evidence” tending to support the ALJ’s finding that the need for the Marquet procedure is related to the 1994 injury. It is true that the medical records indicate that the claimant underwent a right knee surgery in 1986. However, Dr. Horstman states that the claimant had done quite well between 1986 and 1994, but consistently experienced problems after 1994 injury. He also indicated that it was unfair to consider “subsequent employers” responsible for the claimant’s knee problems since there was no history of a specific injury with those employers. Under these circumstances, the ALJ could plausibly interpret Dr. Horstman’s opinion as evidence that the claimant’s need for the Maquet procedure is causally related to the 1994 injury.
It is true that Dr. Belleville opined that the claimant’s need for surgery is entirely caused by the preexisting condition, and Dr. Horstman believed that the preexisting condition played some role in the claimant’s need for surgery. However, the ALJ was most persuaded by Dr. Horstman’s opinion. Viewed in a light most favorable to the claimant, Dr. Horstman’s opinion permits the inference that 1994 injury aggravated the preexisting condition, and therefore, the need for surgery is compensable. We are in no position to substitute our judgement for that of the ALJ considering the weight and credibility of the medical evidence. City of Durango v. Dunagan, supra.
Neither does the fact that Dr. Horstman and Dr. Belleville opined that the claimant might have needed the Maquet procedure regardless of the industrial injury require a different result. A plausible inference to be drawn from the reports of Dr. Horstman is that the 1994 injury accelerated the progression of the claimant’s degenerative knee condition. Therefore, the award was proper. H H Warehouse v. Vicory, supra.
Finally, the medical evidence did not require the ALJ to conclude that the claimant’s post-injury employments caused the need for surgery. To the contrary, Dr. Horstman stated that it was “probably not the case” that the claimant’s post-injury employments played a role in the need for surgery. He also stated that it was “unfair” to implicate the claimant’s subsequent employers. Even Dr. Belleville rejected the theory that the claimant’s need for surgery is causally related to her post-injury employments.
II.
The respondent next attacks the ALJ’s finding that, in 1995, Dr. Horstman performed a conservative arthroscopic procedure, “but thought at the time that the more radical Maquet procedure might prove necessary in the future.” The respondent contends that this finding is unsupported by the evidence, and that the ALJ himself admitted that this finding is “conjectural.” We disagree.
In applying the substantial evidence test, we must defer to the ALJ’s plausible inferences drawn from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The mere fact that conflicting inferences are possible affords no basis for relief on appeal.
In his report dated March 5, 1997, Dr. Horstman stated the following:
“The proposed procedure is a Maquet tibial tubercle elevation. This is a salvage procedure and is not done on a routine basis. It was not performed in March of 1995 because [the claimant] did not satisfy the requirements to perform this procedure.”
The respondent’s argument notwithstanding, a plausible interpretation of this statement is that Dr. Horstman considered performing the Maquet procedure in 1995, but decided against it because, in his medical judgement, the claimant did not yet satisfy the criteria which would justify performance of the procedure. This inference is particularly compelling in light Dr. Horstman’s statement that the procedure is not “routine,” and is done to “salvage” the knee. This language suggests that the Maquet procedure is done as a last resort when more conservative therapies have failed.
It is true that, in his oral remarks, the ALJ stated that “it’s left up to conjecture as to what paragraph 2 that I referred to means.” (Tr. p. 24). However, after considering the arguments of the parties, the ALJ ultimately stated that, although Dr. Horstman’s opinion was not “crystal clear,” Dr. Horstman only refrained from performing the Maquet procedure in 1995 because he was taking a conservative approach to the claimant’s care. (Tr. p. 33). We cannot say that this is an implausible interpretation of the evidence, and decline to substitute our judgment for that of the ALJ concerning the inference to be drawn from Dr. Horstman’s report.
III.
The respondent’s final contention is that the claimant sustained an occupational disease while performing the post-injury employments. Essentially, the respondent argues that claimant’s duties, particularly those requiring her to stand, aggravated the preexisting knee condition. We disagree.
As we have already held, there is substantial medical evidence that the claimant did not sustain a compensable occupational disease subsequent to the 1994 injury. The ALJ implicitly rejected this argument, and we may not substitute our judgment for his on this factual issue. Thus, the respondent’s argument predicated on this view of the evidence affords no basis for relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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 December 22, 1997 to the following parties:
Brooke Drake-Jordan, 429 Main St., Windsor, CO 80550
John Duval, Assistant City Attorney, P.O. Box 580, 300 LaPorte Ave., Ft. Collins, CO 80522
Blair Miller, Risk Management, City of Ft. Collins, P.O. Box 580, 112 North Howes, Ft. Collins, CO 80522
Stewart Ellenberg, Risk Management, City of Ft. Collins, P.O. Box 580, 112 North Howes, Ft. Collins, CO 80522
Marti Meyers, Crawford Co., 2850 McClelland Dr., Ste. 1600, Ft. Collins, CO 80525
Bradley Johnson, 116 N. College Ave., Ste. 1, P.O. Box 1838, Ft. Collins, CO 80522 (For the Claimant)
Kent N. Campbell, Esq. Kimberly B. Schutt, Esq., P.O. Box 2166, Ft. Collins, CO 80522 (For the Respondent)
By: _______________________________