W.C. No. 4-470-347Industrial Claim Appeals Office.
November 5, 2001
FINAL ORDER
Bankers Standard Insurance Company (Bankers) and its insured, Tolin Mechanical System Co., (Tolin) seek review of an order of Administrative Law Judge Harr (ALJ) which held them responsible for the claimant’s lumbar disc herniation. We affirm.
On December 9, 1999, the claimant suffered an admitted back injury while carrying a 400-pound compressor with a co-employee. At the time of the injury, the employer was insured by Bankers. Effective April 1, 2000, Transcontinental Insurance Company was the insurer on the risk. The claimant testified the compressor slipped out of his hands, and as he reached down to grab the compressor to prevent it from falling, he “felt a pop” in his lower back. (Tr. p. 15). The next morning he experienced severe low back pain.
On December 13, 1999, the claimant was examined by Dr. Tentori who documented intermittent radicular symptoms affecting the claimant’s lower extremity, along with pain in the left buttocks and anterior thigh. Dr. Tentori also found mild tenderness to palpitation at the L4-5 level of the claimant’s spine. X-rays revealed degenerative changes and slightly shifting vertebral spinous process, but no herniated disc. Dr. Tentori diagnosed “lumbar strain” and did not order additional testing.
The claimant had a follow-up appointment with Dr. Tentori on December 16. However, the ALJ found the claimant did not attend the appointment “because he was unable to leave work.” The claimant testified that he subsequently performed his regular work by requesting help from co-workers and self-medicating with Extra-Strength Tylenol, which reduced, but did not eliminate the pain. (Tr. p. 19). Over the next several months, the claimant’s pain waxed and waned. (Tr. p. 20). However, in early June, his condition worsened. (Tr. p. 20). On June 22, the claimant’s pain was significantly more severe, and on June 28, the claimant was in so much pain he had difficulty getting out of bed. (Tr. p. 21). As a result, he was transported by ambulance to the hospital, where an MRI revealed a left paracentral disk herniation at the L4-5.
The ALJ found the claimant suffered no intervening injury or occupational disease between December 9, 1999 and June 22. Rather, the ALJ found it is “more probably true than not” that the disk herniation was the “direct and proximate consequence” of the December 9, 1999 injury. In so finding, the ALJ expressly credited the opinions of Dr. Tentori and the claimant’s testimony of progressively worsening symptoms. Therefore, the ALJ ordered Bankers to pay all temporary disability and medical benefits awarded on account of the disk herniation.
On review, Bankers makes general allegations of error. See §8-43-301(8), C.R.S. 2001. Bankers also contends the claimant’s condition is the result of an intervening injury. In support, Bankers relies on evidence that in June 2000, the claimant told the hospital he was injured three months earlier while lifting a compressor and that he felt the onset of severe pain on June 28, when he bent over to tie his shoe. Therefore, Bankers argues the evidence is legally insufficient to support the ALJ’s finding of a causal relation between the industrial injury and the disk herniation. We disagree.
An insurer is liable for a claimant’s disability which flows proximately and naturally from an industrial injury. Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, the insurer’s liability may be severed if the evidence shows that the claimant’s condition is attributable to an independent intervening injury or event. Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986).
The question of whether a claimant’s disability and need for treatment are the natural and proximate results of a prior industrial injury, or the product of an intervening injury or event is one of fact for resolution by the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s determination in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). This standard also requires that we view the evidence in the light most favorable to the prevailing party Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293
(1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
It is the claimant’s burden to prove a causal relationship between the industrial injury and the medical condition for which he seeks benefits. Section 8-43-301, C.R.S. 200 ; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). However, the claimant is not required to prove causation by medical certainty. Rather it is sufficient if the claimant presents evidence of circumstances indicating with reasonable probability that the condition for which he seeks medical treatment resulted from or was precipitated by the industrial injury, so that the ALJ may infer a causal relationship between the injury and need for treatment. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
Furthermore, the claimant is not required to present medical evidence to prove the cause of the condition. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). To the contrary the claimant’s testimony, if credited may be sufficient to establish the requisite nexus between the industrial injury and the disability for which benefits are sought. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983). However, to the extent expert medical testimony is presented, it is the ALJ’s sole prerogative to assess its weight and sufficiency. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Insofar as the medical testimony is inconsistent or subject to conflicting interpretation, we are bound by the ALJ’s resolution of those inconsistencies and the plausible inferences the ALJ drew from the conflicts. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). This is true because the ALJ is considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Initially, we reject Bankers’ contention that the record fails to support the ALJ’s finding that the claimant was “unable to leave work” to attend the December 16 appointment with Dr. Tentori. The claimant testified that he was feeling better because the medication prescribed by Dr. Tentori was easing the pain. (Tr. p. 18). He also stated the employer provided no paid sick days. (Tr. p. 16). Under these circumstances, the claimant stated that he didn’t want to take time off work without pay to attend an appointment with Dr. Tentori. (Tr. p. 19). The ALJ’s findings of fact are not a model of clarity. However, as we read the ALJ’s order, he relied upon the claimant’s testimony to infer that the claimant did not attend the December 16 appointment could not “get away from work” without losing pay.
Neither do we perceive any error in the ALJ’s finding that the herniated disc was caused by the industrial injury, rather than an intervening injury. The employer’s witness did not know the exact date of the alleged lifting incident in 2000, or the name of the co-worker. To the contrary, the employer’s witness admitted he assumed the claimant lifted the compressor with a co-worker in April 2000 because it was too heavy for one employee to lift alone. (Tr. pp. 39, 41).
However, the claimant denied lifting a large compressor with a co-worker in April 2000. He stated that he helped a co-worked slide a condensing unit across a roof on June 23, but the last incident where he lifted a large compressor occurred on December 9, 1999. (Tr. pp. 30, 42-44). Based upon this record, the ALJ could reasonably infer that the medical records describing an injury while lifting a compressor all refer to the December 1999 incident, regardless of the erroneous reference to an incident 3 weeks or 3 months prior to June 2000.
Further, the claimant denied any specific incident or injury between December 9, 1999 and June 28, 2000 which caused his increased low back pain. (Tr. p. 21). The claimant also denied that the severe pain he experienced on June 28 was triggered when he bent over to tie his shoes. Rather, he stated that he was in severe pain while he laid in bed before he ever tried to put on his shoes. (Tr. pp. 23, 27, 28).
Although Dr. Tentori was unable to determine the cause of the herniation with certainty (Tentori depo. p. 46), he opined that the herniation was caused by the December injury. (Tentori reports July 5, 2000; July 23, 2000). Dr. Tentori based his opinion on the claimant’s report of being essentially asymptomatic prior to December 9, 1999, and the fact that a “lumbar strain” normally resolves in a couple of week it. (Tr. p. 17; Tentori depo. p. 13). In so doing, Dr. Tentori considered evidence the claimant reported the onset of severe pain while bending over to tie a shoe. However, Dr. Tentori opined that the incident was no more than a “possible” cause of the herniated disc. (Tentori depo. p. 36). Instead, Dr. Tentori stated that he had been “consistent” and persistent in his belief that the December 9 incident was the cause of the herniated disc. (Tentori depo. p. 36). Thus, we reject Bankers’ contention that there is insufficient evidence to support the ALJ’s finding that Dr. Tentori “continues” to attribute the herniated disk to the December 9 incident. (Finding of Fact 8). The results of Dr. Tentori’s December 1999 examination did not preclude the ALJ from finding the claimant proved the requisite causal relationship. Dr. Tentori stated that the injury on December 9 was consistent with either a herniated disk or a strain and that even though he diagnosed a “lumbar strain,” the history “was concerning for a herniated disk.” (Tentori depo. pp. 10, 11). Dr. Tentori also stated that the straight-leg raise exam he performed on December 13 was negative. (Tentori depo. p. 7). However, he admitted a straight leg raise test is too vague to prove or disprove a disk herniation. Similarly, he stated that the normal neurological examination on December 13 neither proves nor disproves the existence of a disk herniation. (Tentori depo. p. 9).
Because there is substantial evidence in the testimony of Dr. Tentori and the claimant to support the ALJ’s pertinent findings, we cannot say the ALJ erred in holding Bankers solely responsible for the herniated disc. Bankers’ remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 15, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed November 5, 2001 to the following parties:
Christopher Ferguson, 112 S. Joliet Circle, #303, Aurora, CO 80012
Tolin Mechanical Systems Co., P. O. Box 440638, Aurora, CO 80044-0638
Bankers Standard Insurance Co., P. O. Box 2941, Greenwood Village, CO 80150-0141
Marilyn Michotte, Transcontinental Insurance Co., P. O. Box 17369 T. A., Denver, CO 80217
Kerry L. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents Tolin Mechanical Systems Co. and Bankers Standard Insurance Co.)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents Tolin Mechanical Systems Co. and Transcontinental Insurance Co.)
BY: A. Pendroy