W.C. No. 4-230-111Industrial Claim Appeals Office.
September 23, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which denied his claim for temporary disability benefits from November 1993 to June 1994, and continuing benefits commencing July 26, 1994. We affirm.
The ALJ found that the claimant sustained a compensable injury on October 1, 1992 when his truck rolled over. At the emergency room the claimant reported left arm pain, left shoulder pain, and chest and neck injuries. On October 2, 1992, the claimant was examined by Dr. Stanton, D.O., who diagnosed “cervical/thoracic strain and left shoulder contusion, resolved.” The claimant was discharged from care and returned to his regular employment.
By March 1993, the claimant was complaining of numbness and tingling in both hands. He was examined by Dr. Thomas who diagnosed “bilateral impingement syndrome, probably thoracic outlet syndrome” and a “mild cervical degenerative disease.” The claimant then underwent a course of physical therapy.
The claimant did not seek any further medical treatment until November 1994 when he was examined by Dr. Litvak for of neck and arm symptoms. Ultimately, Dr. Litvak diagnosed “borderline carpal tunnel syndrome on the right” with minor ulnar sensory neuropathic changes in both upper extremities. The claimant was also seen by Dr. Calabrese for complaints of paresthesia and weakness of his right leg, occasional bladder incontinence, neck pain, headaches, and bilateral upper extremity pain right greater than left. Dr. Calabrese opined in January 1995 that many of the claimant’s symptoms are “due to degenerative changes” in the neck and back, though it is “possible” that some are related to an “aggravation” resulting from the October 1992 accident.
The ALJ found that the claimant failed to prove that the alleged periods of disability were causally connected to October 1, 1992 accident. In support of this determination, the ALJ noted that the claimant’s symptoms immediately following the October 1992 accident involved only the neck, left shoulder, left arm and left chest. However, the symptoms which appeared in March 1993 and thereafter typically involved both upper extremities as well as the claimant’s lower right extremity. Moreover, the ALJ found that these symptoms were similar to those which existed after the claimant’s 1986 industrial accident.
On review, the claimant contends that the ALJ’s findings concerning causation “went beyond the issue presented for hearing” and are not supported by substantial evidence. In support of this argument, the claimant cites his own testimony that he was not experiencing any symptoms prior to the October 1992 injury, and Dr. Calabrese’s statement that his symptoms could be causally connected to an October 1992 aggravation of his preexisting degenerative condition. We reject the claimant’s arguments.
The claimant was required to prove a causal connection between the claimed periods of disability and the October 1992 injury. Section 8-41-301(1)(c), C.R.S. (1996 Cum. Supp.); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). The question of whether the claimant proved the requisite causal connection is one of fact for resolution by the ALJ. Eisnach v. Industrial Commission, supra.
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. (1996 Cum. Supp.). Thus, it was for the ALJ to assess the credibility of the witnesses, the weight of the evidence and the inferences to be drawn therefrom. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s conclusion concerning the claimant’s failure to establish a causal relationship between the injury and the disability. As the ALJ found, the record contains medical evidence that the claimant’s symptoms in 1988 were very similar to those which he reported in March 1993. Moreover, the 1988 symptoms and the 1993 symptoms predominantly involved the right side of the claimant’s body, while the October 1992 symptoms principally affected the left side of the body.
Under these circumstances, the ALJ could logically infer that the 1992 injury involved nothing more than a minor aggravation of the claimant’s preexisting degenerative condition, and did not influence his subsequent difficulties. It is true that this interpretation of the evidence conflicts with the claimant’s testimony, but the ALJ resolved this conflict against the claimant. It is also true that the ALJ’s interpretation conflicts with Dr. Calabrese’s conclusion concerning causation, but the ALJ was not impressed by Dr. Calabrese’s opinion since the claimant did not mention the 1986 injury to her. Under such circumstances, we may not interfere with the ALJ’s evaluation of the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Neither do we believe that the claimant was unfairly surprised by the ALJ’s consideration of the causation issue. As we have pointed out, the claimant bore the initial burden of proof to establish a causal relationship between the injury and disability. Thus, proof of causation was an inherent part of the claimant’s own case. Moreover, the respondents indicated that their defense was predicated on the issue of causation. (Tr. Vol. I, pp. 9-10).
However, even if the issue of causation had not been explicitly raised, we would find no error. The record is replete with references to facts bearing upon the causation issue. Consequently, the issue was tried by consent of the parties. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
Finally, in his brief, the claimant makes reference to the respondents’ alleged liability for certain medical benefits. The ALJ did not consider this issue, nor did she purport to decide it. Thus, if the claimant desires to resolve the respondents’ liability for any disputed medical benefits he must apply for a hearing. The issue is not properly before us at this time.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 1995, 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. (1995 Cum. Supp.).
Copies of this decision were mailed September 23, 1996 to the following parties:
Maynard L. Duis, 3555 S. Pennsylvania, Apt. #108, Englewood, CO 80110
Phil Godsey Trucking, Inc., 401 N. Kuner Road, Brighton, CO 80601-2841
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Vernon P. Playton, Esq., 1200 Lincoln St., #650, Denver, CO 80203-2164 (For the Claimant)
Raymond F. Callahan, Esq., Patrick M. Plank, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
By: _____________________