W.C. No. 3-398-878Industrial Claim Appeals Office.
September 13, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied his petition to reopen. We affirm.
The claimant sustained an admitted industrial back injury in March 1988. The case was closed by a final admission of liability dated March 29, 1988.
In January 1993, the claimant was diagnosed with disc herniations at L4-5 and L5-S1. Ultimately, these herniations required surgery. The claimant petitioned to reopen his claim alleging a causal relationship between the 1988 injury and the need for surgery.
However, the ALJ found that the claimant failed to prove the requisite causal relationship. In support of this determination, the ALJ stated that he was most persuaded by the testimony of Dr. Bernton. Dr. Bernton opined that the claimant’s 1988 industrial injury caused a back strain which could not explain the disc herniations diagnosed five years later. In support of his opinion, Dr. Bernton observed that the medical reports from 1988 did not indicate radicular pain, and that the claimant did not seek treatment for back-related problems between March 1988 and April 1991.
The claimant did not file a brief in support of his petition to review. Therefore, the effectiveness of our review is somewhat limited.
In his petition to review, the claimant indicates dissatisfaction with the ALJ’s findings of fact. Specifically, the claimant states that the ALJ failed to consider his testimony, as well as the opinions of Dr. Hitchcock and Dr. Burke. Further, the claimant alleges that there is no evidence that an injury which intervened between the 1988 industrial injury and the diagnosis of the disc herniations in 1993. We reject these arguments.
The question of whether the claimant proved a causal relationship between the industrial injury and the disc herniations is one of fact for resolution by the ALJ. Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981). Because proof of causation is factual, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). To the extent there was conflicting medical evidence on the issue of causation, it was for the ALJ to determine the weight and credibility of the various opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ resolved the conflicts in the evidence and was persuaded by the testimony of the respondent’s expert, Dr. Bernton. It is true that the claimant presented conflicting testimony, but we are not free to substitute our judgment for that of the ALJ concerning the weight of the medical evidence. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Moreover, the respondents were not required to prove that there was an “intervening injury” between March 1988 and 1993. To the contrary, Dr. Bernton testified that the claimant had pre-existing disc disease, and therefore, even simple movements could cause a disc herniation not causally related to the 1988 industrial injury. (Bernton Depo. p. 42).
Further, the claimant’s assertion that the ALJ did not consider his testimony or that of his medical experts, is without merit. The ALJ’s order explicitly discusses the claimant’s testimony, as well as the testimony of his experts. The ALJ simply resolved conflicting evidence against the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order, dated October 14, 1994, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 13, 1995 to the following parties:
James Efferson, 2064 Moline St., Aurora, CO 80010
Ogden Allied Services Corp., % Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203
Travelers Insurance Co., Attn: Deborah Frate Sicard, P.O. Box 17360, Denver, CO 80217-0360
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondent)
James R. Collins, Esq., 1337 Delaware St., 2nd Flr., Denver, CO 80204 (For the Claimant)
By: ________________________