W.C. No. 4-234-655Industrial Claim Appeals Office.
January 31, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied his claim for medical treatment. We affirm.
The ALJ’s findings may be summarized as follows. The claimant sustained a compensable knee injury in November 1994. As a result, he underwent surgery by Dr. Lindberg in December 1994. The surgery consisted of a “partial lateral meniscectomy,” and it was discovered that the claimant had significant preexisting arthritis.
In February and March 1995, the claimant was evaluated by Dr. Gevaert for purposes of determining an impairment rating. In a report dated February 17, 1995, Dr. Gevaert opined that the claimant had significant degenerative changes prior to the industrial injury, and that if the claimant needed a “total knee replacement at some point, this should not be considered work-related to this injury.”
In May 1995, the claimant was examined by Dr. McLaughlin for purposes of a Division-sponsored independent medical examination (IME). Dr. McLaughlin agreed with Dr. Gevaert that the claimant had significant pre-injury arthritis, and that any future need for a “knee arthroplasty” would be unrelated to the industrial injury.,
In January 1996, Dr. Lindberg recommended arthroscopic surgery “in an attempt to prevent the need for a future knee replacement.” In a report dated February 7, 1996, Dr. Lindberg opined that the claimant’s need for arthroscopic surgery was causally connected to the industrial injury which had aggravated the claimant’s underlying arthritis. However, Dr. Lindberg’s opinion was contradicted by Dr. Gevaert who opined that the claimant’s need for additional surgery was caused by the preexisting arthritis. (Gevaert Depo. p. 20). Dr. McLaughlin testified that the claimant’s arthritis was likely to deteriorate over time, and that arthroscopic surgery would treat the deterioration. He further opined that the need for surgery is not related to the injury unless there is evidence of a “further tear” in the meniscus. (Tr. p. 24).
Under these circumstances, the ALJ found that the need for the arthroscopic surgery is not causally connected to the industrial injury. In support of this determination, the ALJ cited the testimony of Dr. Gevaert and Dr. McLaughlin, as well as the absence of any evidence that the claimant has a new tear in the meniscus.
On review, the claimant contends that the “preponderance of the evidence” establishes that his need for additional surgery is causally connected to the industrial injury. In support of this proposition, the claimant contends that the ALJ erred in relying on the opinions of Dr. Gevaert and Dr. McLaughlin because neither physician examined the claimant, or spoke with Dr. Lindberg, following their respective examinations of the claimant in the spring of 1995. Under such circumstances, the claimant contends that Dr. Lindberg’s opinion is the only credible evidence concerning causation, and therefore, the issue is one of law which we may determine. We find no error.
It is true that the issue of causation may be one of law if the evidence is undisputed and subject to only one inference. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). However, insofar as the evidence is conflicting or subject to different inferences, causation is a matter of evidentiary fact to be resolved by the ALJ. See F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Insofar as the issue is factual, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 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. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Further, to the extent the record contains expert medical evidence concerning causation, it is for the ALJ to assess its weight and credibility Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). And, when the assessing medical testimony, the question of whether an expert has received an adequate medical history goes to the weight, not the admissibility of the opinion. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
The failure of Dr. Gevaert and Dr. McLaughlin to examine the claimant after the spring of 1995, and their failure to speak with Dr. Lindberg, goes to the weight, not the admissibility of their opinions. Both Dr. Gevaert and Dr. McLaughlin indicated familiarity with the medical records pertaining to the claimant’s injury, and both examined the claimant in 1995. Apparently, these physicians were satisfied that this history provided them with an adequate factual basis for judging the likely cause of the claimant’s need for further surgery. Moreover, the ALJ was persuaded by the opinions of these physicians, and we decline to substitute our judgment for his concerning the credibility of the expert witnesses.
Further, the opinions of Dr. McLaughlin were not rendered meaningless simply because he failed to state, to a reasonable degree of medical probability, whether or not the claimant’s need for surgery is causally connected to the injury. The ALJ could logically interpret Dr. McLaughlin’s testimony to mean that, in the absence of a new meniscal tear, the likely cause of the claimant’s need for surgery is the preexisting condition. See Beaudoin Construction Co. v. Industrial Commission, 626 P.2d 711
(Colo.App. 1981) (failure to couch medical testimony in terms of a reasonable medical probability is not fatal where expert’s opinion could be inferred from the overall context of his testimony). It is true that Dr. McLaughlin’s opinions contained some internal inconsistencies, but it was for the ALJ to resolve them. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
It follows that we disagree with the claimant’s assertion that the issue of causation is a “legal” one which we may resolve independently of the ALJ. To the contrary, the record contains conflicting medical opinions concerning the cause of the claimant’s need for surgery, and the ALJ’s resolution of the issue is supported by substantial evidence. Consequently, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 12, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed January 31, 1997 to the following parties:
Spencer Givens, 12962 Olmstead, Denver, CO 80239
Chris Acierno, Bailey’s Moving and Storage, 11755 E. Peak View Ave., #B, Englewood, CO 80111
Linda Wilson, Industrial Indemnity, 1471 Shoreline Dr., #200, Boise, ID 83702
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Dr., #280, Denver, CO 80209 (For the Claimant)
James B. Buck, Esq., 1777 S. Harrison St., Ste. 1110, Denver, CO 80210 (For the Respondents)
By: ______________________________________________