W.C. No. 4-383-587Industrial Claim Appeals Office.
May 23, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged a low back injury in June 1998, caused by heavy lifting activities during his employment for Big R Manufacturing
Distributing (Big R). However, the ALJ found the claimant’s back problems are degenerative in nature and unrelated to the employment. Therefore, the ALJ determined the claimant failed to prove a compensable injury.
On review the claimant contends he truthfully disclosed a 1990 back injury to the employer, but the injury was not disabling prior to 1994 when he was hired by Big R. Further, the claimant contends that his testimony concerning heavy lifting required by his employment was unrefuted. Therefore, the claimant argues the record is legally insufficient to support the ALJ’s determination that his back problems are the result of a condition or event other than the employment. We disagree.
A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. Section 8-41-301(1)(c), C.R.S. 2000. The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury, if an industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of conflicting evidence or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard it is the ALJ’s sole prerogative to assess the weight and sufficiency of the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Contrary to the claimant’s contention, the ALJ did not find the claimant’s back problems were causally related to the 1990 back injury. To the contrary, the ALJ determined the condition was degenerative in nature. The ALJ’s determination is a plausible inference from the record. Therefore, we may not disturb that finding on review. See Delta Drywall v. Industrial Claim Appeals Office, supra.
The claimant admitted he had ongoing back problems for 15 to 20 years, and when the pain was bad enough to require treatment he sought treatment. (Tr. pp. 32-33). For example, the record contains evidence the claimant sought chiropractic treatment for a stiff and painful low back in July 1996. However, the treatment report does not relate the claimant’s pain to his employment. In June 1998, the claimant sought treatment from Dr. Turner for complaints of low back pain markedly aggravated by sitting, standing and walking around. (Turner June 16, 1998). However, according to Dr. Turner’s report, the claimant did not report increased symptomatology with lifting activities at work.
Furthermore, the record contains medical evidence that a 1998 MRI ordered by Dr. Turner revealed degenerative changes in the lumbar spine including “mild to moderate spinal stenosis.” On July 29, 1998, Dr. Turner performed decompressive laminectomies at L2-L5. In his operative report Dr. Turner diagnosed multiple lumbar radiculopathies secondary to lumbar stenosis. Further an MRI taken prior to the hospital discharge states the claimant has “severe spondylolisthesis” at L2-L3, L3-L4 and L4-L5. (Summary Order October 22, 1998). Based upon this evidence the ALJ could, and did, infer the claimant’s worsened back condition was due to the progression of his degenerative disc disease, not his employment activities.
The claimant’s remaining arguments have been considered and do not alter our conclusions. The ALJ’s order was not based solely on Dr. Brighi’s medical record dated September 5, 1997, which noted a history of “low back pain bothering, right hip and leg started about a month ago.” Therefore, it is not fatal to the order denying benefits that Dr. Brighi’s report is in and of itself insufficient to support the ALJ’s pertinent findings.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 1998, 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 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. 2000. 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 May 23, 2001 to the following parties:
Willard Gaines, 1918 11th St., Greeley, CO 80631
Big R Manufacturing Distributing, P. O. Box 1290, Greeley, CO 80632
Indemnity Insurance Company of North America, _ Lauren Jordan, ACE USA, P. O. Box 2941, Greenwood Village, CO 80150-0141
Brad R. Irwin, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Tony Ogden, Esq., 625 E. 16th Ave., #100, Denver, CO 80203 (For Respondents)
Connie K. Ward, Esq., 4582 S. Ulster St., Sute 906, Denver, CO 80237
BY: A. Pendroy