W.C. No. 3-920-202Industrial Claim Appeals Office.
November 2, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) dated August 2, 1995, which reopened the claim based upon a change of condition, and awarded benefits. We affirm.
The ALJ’s August order was issued pursuant to our order of remand dated May 4, 1995. We set aside the ALJ’s prior order reopening the claim. We concluded that the ALJ’s findings of fact were insufficient to permit appellate review of the respondents’ contention that the claimant failed to prove a causal connection between his change of condition and his original industrial injury. Therefore, we remanded the matter for the ALJ to make specific findings of fact concerning the proximate cause of the claimant’s worsened condition.
On remand, the ALJ determined that the claimant was injured in 1988 during his employment as an automobile mechanic. The ALJ found that the claimant reached maximum medical improvement (MMI) on April 6, 1993, with permanent medical restrictions. The claimant subsequently returned to work as a motorcycle mechanic.
The ALJ found that the claimant’s employment as a motorcycle mechanic was within the medical restrictions imposed by the authorized treating physicians. The ALJ also found that the claimant’s work as a motorcycle mechanic did not aggravate the claimant’s condition. Therefore, the ALJ rejected the respondents’ argument that the worsening of the claimant’s condition is attributable to an intervening injury during the claimant’s post-MMI employment. Instead, the ALJ found that the claimant’s condition naturally deteriorated as a result of the original industrial injury.
On review, the respondents contend that there is no evidence to support the ALJ’s finding that the claimant suffered a worsening of his condition which is causally related to the original industrial injury. We disagree.
First, there is substantial medical evidence that the claimant’s condition worsened subsequent to April 1993. As the ALJ found, Dr. Knobbs reported in July 1994 that the claimant’s condition had deteriorated to the point that he was no longer at MMI. Finding of Fact 4. Further, the ALJ could and did interpret the August 24, 1994 comments of Dr. Brown, and the September 14, 1994 correspondence of Dr. Hanks as indicating that the claimant was no longer at MMI.
Next, we reject the respondents’ contention that the evidence compels a conclusion that the change in the claimant’s condition is attributable to an intervening injury during the claimant’s employment as a motorcycle mechanic. To the contrary, the record is subject to conflicting inferences concerning the cause of the claimant’s deterioration.
Dr. Brown noted on April 6, 1993, that the claimant was still having occasional low-back problems, and on August 24, 1994 reported that the claimant had a “reoccurrence of his back and leg pain.” Similarly, Dr. Hanks’ September 14 correspondence indicates that the claimant suffered a “significant exacerbation of lower back pain related to the 1988 injury.” In contrast, Dr. Knobbs July 11, 1994 report indicates that “any work seems to aggravate the area of chief complaint in his original injury.”
Admittedly, a reasonable inference from this evidence is that the claimant suffered a compensable aggravation of his condition from the performance of his employment as a motorcycle mechanic. See Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances). However, the claimant denied any traumatic event during his employment as a motorcycle mechanic. Tr. p. 18. The claimant also stated that the onset of increased low back pain and numbness in his left leg was gradual during his work at a motorcycle mechanic. Tr. pp. 14, 15. Under these circumstances, it is equally plausible to infer that the proximate cause of the claimant’s worsened condition is a natural deterioration from the original industrial injury. Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6
(Colo.App. 1985) (an injury during employment does not necessarily “arise out of” the employment).
Where the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative as the fact finder to determine which inference is to be drawn. Electric Mutual Liability Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964). Furthermore, we have no authority to substitute our judgment for that of the ALJ in this regard. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
The respondents’ remaining arguments have been considered and are unpersuasive. Although Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419, 421 (Colo.App. 1994) suggests that an injured worker may suffer a separate, compensable injury while performing work within the medical restrictions imposed for a prior industrial injury, the Citadel
court concluded that the cause of the claimant’s worsened condition is a determination for the ALJ based upon the particular facts of the case. In other words, employment within the claimant’s medical restrictions may or may not aggravate the claimant’s underlying condition.
Here, the ALJ was persuaded that the treating physicians correctly determined that the claimant was physically capable of performing the duties of a motorcycle mechanic without exacerbating his underlying condition. The ALJ was also persuaded that the claimant performed the work within his restrictions, and thus, the ALJ expressly declined to infer that the claimant’s condition was aggravated by his work as a motorcycle mechanic. Furthermore, the ALJ’s findings of fact amply reflect her resolution of the conflicts concerning the cause of the claimant’s worsened condition. Therefore, we need not remand the matter for additional findings. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 2, 1995 to the following parties:
Michael A. Frazier, 1477 8th St., P.O. Box 363, Calhan, CO 80808
Montgomery Ward Co., Inc., 2420 E. Pikes Peak Ave., Colorado Springs, CO 80909-6084
Aetna Casualty Surety Co., Attn: Bonnie Burley, P.O. Box 173712, Denver, CO 80217
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203
(For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909
(For the Claimant)
BY: _______________________