W.C. No. 4-513-601Industrial Claim Appeals Office.
July 25, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed the claim for workers’ compensation benefits. The claimant argues the evidence does not support the ALJ’s findings on the issue of causation. The claimant further contends that it was “inherently inequitable” for the ALJ to discount the treating physicians’ opinions concerning the cause of the claimant’s condition. We affirm.
The claimant alleged that she sustained the occupational disease of bilateral upper extremity cumulative trauma disorder (CTD). The claimant alleged the disease developed as a result of repetitive motion required to clean parts with an air gun.
The claimant’s theory was supported by two treating physicians, Dr. Dern and Dr. Byrne. Both physicians indicated the claimant suffered from work-related CTD of the upper extremities, although Dr. Dern stated on August 8, 2001, that the claimant’s “diabetes may be a contributing factor” to the development of the claimant’s upper extremity problems. Dr. Dern also noted the claimant had bilateral foot paresthesia, likely peripheral neuropathy due to DM, not work related.” The opinions of these physicians were corroborated by Dr. Nevarez, who examined the claimant on August 3, 2001. Dr. Nevarez agreed the claimant had work-induced CTD, but ordered blood tests because of the claimant’s ten year history of diabetes and insulin dependence.
The claimant was also examined by Dr. Mordick in May 2002. Dr. Mordick diagnosed “diffuse bilateral upper extremity complaints” which did not lend themselves to a specific diagnosis. However, Dr. Mordick stated the claimant was possibly suffering from diabetic peripheral neuropathy, a rheumatological condition, or symptom magnification. The claimant was examined by Dr. Glassman in November 2002. He diagnosed “polyarthralgis” of the hands of undetermined etiology. Dr. Glassman found no evidence of a work-related condition but noted the possibility of a “systemic inflammatory arthropathy” and “preclinical diabetic rheumatologic manifestations.”
The ALJ found the claimant failed to prove that she sustained a compensable occupational disease caused by the performance of the duties of her employment. The ALJ found that although Dr. Dern and Dr. Byrne diagnosed work-related CTD, they did not “appreciate the poor level of diabetes control by claimant.” Conversely, the ALJ found that both Dr. Mordick and Dr. Glassman “suggested a role for diabetic neuropathy or systemic inflammatory disease rather than occupational disease.” Under these circumstances, the ALJ found the “evidence does not demonstrate that claimant probably suffered an occupational disease.”
On review, the claimant first contends there is “no evidence” to support the ALJ’s opinion that the claimant suffers from diabetic peripheral neuropathy. The claimant argues the ALJ made “his own diagnosis which is not supported by any medical opinion.” The claimant also challenges the sufficiency of the evidence to support the ALJ’s finding that Dr. Dern and Dr. Byrne “did not appreciate the diabetic involvement.” We find no error.
The claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant’s employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Proof of causation is a threshold issue which the claimant must establish by a preponderance of the evidence. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Section 8-43-201, C.R.S. 2002; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because the issue of causation is factual in nature, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires deference to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
We disagree with the claimant’s characterization of the ALJ’s findings. In our view, the ALJ did not “diagnose” the claimant as suffering from diabetic neuropathy. Indeed, the ALJ expressly found that neither Dr. Mordick nor Dr. Glassman reached a “clear-cut diagnosis” of the claimant’s condition. Rather, the ALJ found there was some evidence that the claimant’s upper extremity problems were caused by diabetic neuropathy, and the claimant failed to present sufficient persuasive evidence to meet her burden of proof to establish an industrial cause or contribution to the symptoms. (Finding of Fact 12).
Moreover, the claimant’s argument that there is no evidence to support the ALJ’s determination that she failed to meet the burden of proof is without merit. As the ALJ recognized, the blood test ordered by Dr. Nevarez showed the claimant was at high risk of developing diabetic neuropathy. Although Dr. Nevarez suspected the symptoms were work-related, he acknowledged they could be related to diabetes. Both Dr. Glassman and Dr. Mordick recognized diabetes as a possible cause for the claimant’s symptoms, and neither diagnosed a work-related cause. Moreover, as the ALJ found, the claimant was suffering from symptoms in her lower extremities which were thought to be related to be diabetes. Under these circumstances, it was for the ALJ to assess the credibility and weight of the various medical opinions, and the record supports his conclusion that the claimant failed to meet the burden to establish a work-related cause of the symptoms.
Neither did the ALJ error in finding that Dr. Dern and Dr. Byrne “did not appreciate the poor level of diabetes control by claimant.” In fact, the ALJ expressly found that Dr. Dern did not have the blood test results when she made her diagnosis. (Finding of Fact 6). So far as we can ascertain, Dr. Byrne made no direct reference to the possible role of diabetes and the claimant’s blood work when diagnosing her upper extremity condition. Thus, the ALJ reasonably inferred that these physicians’ opinions were based on an incomplete understanding of the claimant’s medical condition. The fact that other inferences were possible affords no basis for relief on appeal.
The claimant next contends that there is something “inherently inequitable” in the statutory scheme which does not require that the ALJ give decisive weight to the opinion of the treating physicians on the issue of causation. This inequity arises, the claimant argues, because the statute requires the ALJ to credit the opinion of a treating physician that the claimant is able to return to work.
The claimant identifies no equitable principle, and we are not aware of any, which authorizes us to disregard the applicable statutory scheme and require the ALJ to give special weight to the opinions of treating physicians on the threshold issue of causation. As set forth above, causation is, in the first instance, a question of fact for the ALJ. Further, the ALJ assesses the weight to be assigned medical opinions, including those of the treating physicians. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. The statute does not require the ALJ to give special weight to the opinion of a treating physician or any other physician. Cf. Cordova v. Industrial Claim Appeals Office, supra (opinion of DIME physician given “presumptive effect” only when statute so requires, and statute does not require DIME physician’s opinion on question of causation to be given special weight where issue concerns cause of worsened of condition for purposes or reopening); Faulkner v. Industrial Claim Appeals Office, supra (DIME physician’s opinion concerning causation not entitled to special weight where question involved threshold issue of causation). Thus, we decline to read a nonexistent provision into the statute. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001).
We recognize that on the issue of release to return to regular employment the opinion of the treating physician assumes preemptive importance. Section 8-42-105(3)(c), C.R.S. 2002. However, §8-42-105(3)(c) represents a legislative decision to reduce the amount and frequency of litigation on the issue of temporary disability benefits Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). The General Assembly has not expressed a similar intent to circumscribe litigation on the threshold issue of causation. If the General Assembly wishes to adopt such legislation it is for that body, not the Industrial Claim Appeals Office, to do so. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 7, 2003, 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 25, 2003 to the following parties:
Beatriz Gracia, 3005 Galley Rd., Apt. 105, Colorado Springs, CO 80910
Joan Fountaine, Minco Manufacturing, Inc., 855 Aeroplaza Dr., Colorado Springs, CO 80916
Federal Insurance Company, c/o Chubb Group of Insurance Companies, Waterview Two, 9155 E. Nichols, #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Scott D. Sweeney, Esq., and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290 (For Respondents)
By: A. Hurtado