W.C. No. 4-391-294Industrial Claim Appeals Office.
March 7, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed the claim for benefits. The ALJ found that the claimant failed to prove that his low back condition was causally related to the alleged occupational disease. On review the claimant disputes the ALJ’s findings of fact and asserts the undisputed medical evidence supports a finding of causation. We affirm.
The claimant was employed by respondent Qualtek Manufacturing, Inc. (Qualtek) from August 26, 1997, through October 20, 1997. The claimant testified that during this employment he developed back pain which he associated with the duties of employment. According to the claimant, he was required to engage in frequent bending and lifting up to 100 pounds. Qualtek presented testimony from the claimant’s supervisor that the claimant was never required to lift more than 50 pounds, and this occurred no more than eighteen times per day. (Tr. pp. 59, 62, 64).
Although the claimant testified that he quit work on October 20 because he needed a less demanding job, he signed a termination report stating that he was quitting to look for a better job. The claimant did not seek medical treatment until January 23, 1998, when he was examined by Dr. Pennington. Dr. Pennington’s January 23 office note states the claimant was having pain “that has been getting worse for the last 1-2 weeks.” The claimant was unable to identify any physical activity which resulted in his pain.
Dr. Pennington referred the claimant to Physician’s Assistant Brumlik, who examined the claimant on February 13, 1998. The claimant gave Brumlik a history of “insidious onset of right lower back pain for approximately one-and-a-half months.” Brumlik recommended an MRI which revealed a herniated disc at the L5-S1 level. The claimant was then examined by Dr. Murphy, a neurosurgeon. The claimant gave Dr. Murphy a history of back pain beginning in October 1997 with “no specific provoking event.”
The claimant was also examined by Dr. Rook in February 1999. The claimant told Dr. Rook that he was performing “heavy lifting of metal objects for ten hour shifts four days per week” while employed by Qualtek. The claimant advised Dr. Rook that he worked for Qualtek for approximately six months and developed back pain which precluded him from working after October 1997. Dr. Rook opined the claimant’s back pain and herniated disc are most likely related to the duties he performed at Qualtek. (Report of Dr. Rook, February 8, 1999).
The ALJ dismissed the claim for benefits because he concluded the claimant failed to prove that he sustained an occupational disease as a direct and proximate result of the conditions of his employment at Qualtek. In support, the ALJ found that Dr. Pennington’s January 23 office note, and Physician’s Assistant Brumlik’s February 13 office note, do not support an association between the onset of the claimant’s symptoms and the employment at Qualtek. The ALJ also credited the respondent’s evidence concerning the physical demands of the claimant’s employment. Therefore, the ALJ discredited Dr. Rook’s opinion concerning the cause of the claimant’s symptoms because it was based on an inaccurate history.
On review the claimant contends the evidence does not support the ALJ’s determination that he failed to prove a compensable occupational disease. Specifically, the claimant disputes the ALJ’s Findings of Fact numbered 2, 6, and 7. The claimant further asserts that, contrary to the ALJ’s conclusion, the medical evidence is entirely consistent and compels the conclusion that his symptoms are causally related to the employment at Qualtek. We disagree with these arguments.
The claimant was required to prove that the alleged occupational disease was directly and proximately caused by the conditions of his employment. Wal-Mart Stores, Inc., v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999); §8-40-201(14), C.R.S. 1999. The question of whether the claimant met the burden of proof was one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 1999. When applying this standard of review, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Wal-Mart Stores, Inc., v. Industrial Claim Appeals Office supra. We specifically note that the weight and credibility to be accorded expert medical evidence on the issue of causation is a matter within the exclusive province of the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, insofar as the testimony of a particular expert contains inconsistencies, the ALJ may resolve the inconsistency by believing part or none of the testimony Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997). Even unrebutted medical testimony need not be credited. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
The claimant’s argument notwithstanding, Finding of Fact 2 concerning the nature of the claimant’s duties is supported by the testimony of the claimant’s supervisor. Although the claimant testified to facts which would have supported contrary findings and conclusions, the ALJ resolved the conflict in favor of the respondents. We are in no position to substitute our judgment for that of the ALJ on this credibility issue. Further, we cannot say the ALJ erred as a matter of law in finding that the claimant’s duties did not require him to engage in “repetitive heavy lifting.” The ALJ was not required to infer that lifting 50 pounds approximately once every half hour during a ten hour shift constituted frequent, heavy lifting.
The claimant next challenges Finding of Fact 6, in which the ALJ found that the history of pain beginning in October 1997, which the claimant gave to Dr. Murphy in April 1998, is inconsistent with the history which the claimant gave to Dr. Pennington on January 23, 1998, and Physician’s Assistant Brumlik on February 13, 1998. In support of this proposition, the claimant points out that Dr. Pennington’s January 23 note refers to the claimant’s pain getting worse over the last 1 to 2 weeks.
However, the ALJ drew plausible inferences from the office notes of Dr. Pennington and Physician’s Assistant Brumlik. Dr. Pennington’s January 23 note does not indicate the precise date on which the claimant’s pain originally began, only that the pain worsened over the last two weeks. This note, taken with Brumlik’s February 13 note that the claimant’s pain began one and one-half months earlier, supports the ALJ’s inference that the claimant’s pain did not begin in October 1997, but must first have appeared in late December 1997 or early January 1998. As the ALJ recognized, this inference is corroborated by the claimant’s failure to report any physical difficulties when he resigned from employment on October 20. Under the circumstances, the ALJ was not required to credit the history which the claimant gave to Dr. Murphy in April 1998.
Neither do we perceive any error in Finding of Fact 7, in which the ALJ discredited Dr. Rook’s opinion on causation because it was based upon an inaccurate medical history. The claimant gave Dr. Rook a history of being required to lift up to 100 pounds for approximately six months in 1997. However, the ALJ found, on substantial evidence, that the claimant was not required to lift up to 100 pounds, and only worked for Qualtek for approximately two months. Under these circumstances, we cannot say the ALJ was required to credit Dr. Rook’s opinions.
The claimant next contends the ALJ misconstrued and misrepresented the medical evidence concerning the issue of causation. Again, we find no error.
The claimant points out that on November 7, 1998, Dr. Pennington issued a report in which he stated the claimant’s symptoms first appeared in October 1997. In light of this report, the claimant asserts the ALJ misconstrued Dr. Pennington’s January 23 office note as constituting evidence that the claimant’s symptoms did not appear until later. However, the ALJ was not required to infer that the November 7 report represented the history which the claimant gave to Dr. Pennington in January 1998. In fact, it is possible the Dr. Pennington’s reference to the onset of symptoms in October 1997 was a product of his review of subsequent medical reports. In any event, the inconsistency between the January 23 office note and the November 7 report presented an inconsistency in the evidence which the ALJ was free to resolve. We cannot say the ALJ erred in his resolution of the issue, particularly in light of Brumlik’s February 13 note.
It follows that we disagree with the claimant’s assertion that the medical record is entirely consistent, and supports Dr. Rook’s opinion that the claimant sustained a work-related occupational disease. However, even if Dr. Rook’s opinion is “unrebutted,” the ALJ was not required to credit it.
The claimant also asserts that Dr. Pennington’s November 7 report constitutes an opinion on the issue of causation and, therefore, the ALJ erred in stating that Dr. Rook’s opinion is the “only medical report” on the issue causation. However, the claimant’s argument misstates the ALJ’s finding. The ALJ actually stated that Dr. Rook’s report was “the only medical report containing a direct opinion regarding the work-related nature” of the alleged injury. (Emphasis added).
Our review of Dr. Pennington’s November 7 report does not reveal any “direct opinion” on the issue causation. Although the report contains statements from which it might be inferred that Dr. Pennington believes there is a relationship between the claimant’s employment and his condition, there is no explicit statement to that effect. Thus, the ALJ’s finding does not constitute an erroneous interpretation of the evidence.
The ALJ’s determination that the claimant failed to prove a compensable occupational disease is supported by substantial evidence and plausible inferences drawn from the record. The mere fact the evidence might support contrary findings and conclusions affords no basis for relief on appeal.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 24, 1999, 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. 1999. 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 March 7, 2000 to the following parties:
Richard Garcia, 518 N. Prospect St., Colorado Springs, CO 80903
Don Werschky, Qualtek Manufacturing, Inc., 4230 N. Nevada, Colorado Springs, CO 80907
Carol Ann Lussenden, Sentry Insurance, P. O. Box 8032, Stevens Point, WI 54481
Richard E. Falcone, Esq., 3510 Galley Rd., #110, Colorado Springs, CO 80909 (For Claimant)
John M. Lebsack, Esq., 950 17th St., 21st floor, Denver, CO 80202-2804 (For Respondents)
BY: A. Pendroy