W.C. No. 4-534-659.Industrial Claim Appeals Office.
October 6, 2003.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) awarding medical benefits. The respondents contend the ALJ’s finding that the claimant sustained an industrial injury which aggravated or accelerated a preexisting condition is not supported by substantial evidence. We affirm.
The issue in this case is whether the claimant’s medical condition and consequent need for removal of his right lung are causally related to an industrial injury which allegedly occurred on February 20, 2002. The claimant, a mover, testified that on that day he was moving a box springs down a flight of stairs. The claimant slipped causing the box springs to strike him in the chest.
The claimant testified that he experienced immediate chest pain and coughed up blood. On February 28, 2002, the claimant was examined by Dr. Krebs and, after an abnormal CT scan in March, was referred to Dr. Coburn, a pulmonologist. A second CT scan in April was suggestive of increased inflammation and the claimant was referred to Dr. Sawyer, a surgeon. Dr. Sawyer removed the claimant’s right lung to “address the growing unidentified mass in the claimant’s right upper lobe.” Removal of the lung revealed the claimant was suffering from a complete thrombosis (clotting) of the right pulmonary artery.
The claimant alleged that the incident with the box springs caused the need for medical treatment and removal of the lung. In support, the claimant principally relied on the reports and deposition testimony of Dr. Coburn. Dr. Coburn opined that, due to a preexisting fungal infection, some of the claimant’s lymph nodes in the mediastinum region were “calcified.” Further, when the box springs struck the claimant’s chest, some of the affected lymph notes ruptured causing the discharge of “caseous material” into the mediastinum. The discharged material initiated an inflammatory response resulting in fibrosing (or sclerosing) mediastinitis (FM), and ultimately blockage of the pulmonary artery.
The respondents presented the reports and testimony of Dr. Repsher, who opined that FM is a poorly understood immunological disorder. Further, Dr. Repsher opined that there is no basis for concluding that trauma caused or aggravated the FM. Rather, Dr. Repsher believed the FM was a condition which predated the injury.
The ALJ credited the claimant’s testimony concerning the mechanism of the February 20 injury, and the opinions of Dr. Coburn. Further, the ALJ discredited the opinions of Dr. Repsher. Consequently, the ALJ found the claimant proved that he sustained a compensable injury on February 20, and that the injury aggravated or accelerated a preexisting lung disease so as to cause the need for medical treatment and surgery to remove the lung. Consequently, the ALJ ordered the respondents to pay medical benefits. The ALJ also ordered temporary disability benefits, but that portion of the order is not final because there was no determination of the claimant’s average weekly wage.
On review, the respondents challenge the sufficiency of the evidence to support the ALJ’s finding that the claimant proved a causal relationship between the industrial injury and the FM. In this regard, the respondents contend the ALJ erred in crediting the testimony of Dr. Coburn over that of Dr. Repsher. The respondents also contend the ALJ erred in crediting the claimant’s testimony concerning the mechanism of the injury and his medical history. We find no error.
Initially, we note the respondents appear to contend the ALJ erred in failing to apply the statutory criteria required for proof of an occupational disease. See § 8-40-201(14), C.R.S. 2002. However, the ALJ correctly recognized the claimant’s theory of the case was that a traumatic event aggravated a preexisting condition so as to cause the need for treatment. Such traumatic events, traceable to a particular time, place and cause, are properly categorized as industrial injuries and are not subject to the special proof requirements for occupational diseases Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
The claimant had the burden of proof to establish that the injury and need for treatment were proximately caused by an injury arising out of and in the course of the employment. Section 8-41-301(1)(c), C.R.S. 2002. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because the issue is factual, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 4121 (Colo.App. 1995).
In this regard, we note causation need not be proven by medical evidence where circumstantial evidence would permit an inference of causation. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, where expert medical opinion is presented, it is the ALJ’s sole prerogative to assess its weight and credibility Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents assert that the ALJ erred in considering Dr. Coburn’s testimony because the ALJ did not determine whether the testimony was reliable and relevant under the criteria established in People v. Shreck, 22 P.3d 68 (Colo. 2001). However, the respondents stipulated to Dr. Coburn’s qualifications to testify as an expert in pulmonary medicine. (Coburn Depo., November 13, 2002, P. 5). The respondents never objected to any of Dr. Coburn’s testimony as being outside his expertise or irrelevant. Thus, the respondents waived any potential objection to the ALJ’s consideration of Dr. Coburn’s testimony. CRE 103(1)(a); Cordova v. Industrial Claim Appeals Office, supra; Abad v. Dynalectric, W.C. No. 4-513-389
(May 17, 2003).
Further, we find no basis for overturning the ALJ’s decision to credit Dr. Coburn’s testimony over that of Dr. Repsher. Although Dr. Coburn could not cite any specific example of FM being triggered by a traumatic event, he did point to literature indicating that rupture of a diseased lymph node could trigger the inflammatory response leading to FM, and he disagreed with Dr. Repsher concerning the amount of force required to rupture a lymph node. Further, Dr. Coburn explained why histoplasma organisms and antigens would not be present in the claimant’s blood. Finally, Dr. Coburn explained the x-rays and post surgical examination of the lung support his theory of a preexisting but dormant condition aggravated or accelerated by the traumatic event of February 20. (Coburn Depo., March 14, 2003, Pp. 6-11). Finally, Dr. Coburn’s opinion was corroborated by Dr. Krebs and Dr. Sawyer. In these circumstances, we cannot conclude Dr. Coburn’s testimony is so inherently rebutted by hard, certain evidence or so contrary to established facts or the laws of nature that it is incredible as a matter of law and the ALJ erred in relying on it. See People v. Ramirez, 30 P.3d 807 (Colo.App. 2001); Arenas v. Industrial Claim Appeals Office, 8 P.3d 558
(Colo.App. 2000).
The respondents’ assertion notwithstanding, we perceive no inherent inconsistency in Dr. Coburn’s testimony. As we understand Dr. Coburn’s opinion, he did not deny the claimant suffered from some preexisting condition probably caused by histoplasmosis, and the effects of this condition were detectable in the February 28 x-ray. However, he was convinced that the rapid change in the claimant’s x-rays after February 28 indicated the intervention of a new inflammatory process attributable to the February 20 event. To the extent there was any inconsistency, the ALJ implicitly resolved it in favor of the claimant and against the respondents. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may resolve inconsistency in testimony of medical expert by crediting part of the testimony).
It is true that the ALJ might have reached a different result had he credited the testimony of Dr. Repsher. However, that fact affords no basis for relief considering the applicable standard of review. See Wilson v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003).
The respondents also contend the ALJ erred in resolving certain conflicts in the evidence as they pertain to the alleged mechanism of injury. The respondents point out that the initial report of injury to the treating physician does not contain any mention of the box springs incident. However, the ALJ credited the claimant’s testimony, and that of the treating physician’s nurse, that the claimant reported the box springs incident when he was first examined. The nurse explained the incident was not mentioned in the initial report because the claimant was more concerned with a potential muscle pull. Thus, the record contains substantial, albeit conflicting, evidence to support the order.
The respondents also point out that Dr. Coburn recorded a history that the claimant was coughing for six months prior to the injury. However, the claimant testified this notation was erroneous because he actually told the doctor he had been coughing for six weeks. Moreover, the ALJ credited the testimony of the claimant’s wife and coworkers that the claimant was not coughing before the injury. Thus, there is substantial evidence to support the ALJ’s order.
Insofar as the respondents make other arguments, we find them to be purely factual in nature and without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on October 6, 2003 by A. Hurtado.
Billy B. Heibner, Jr., 790 Spring Creek Blvd., #44, Montrose, CO 81401
Jack Baldwin, Montrose Transfer Storage, 4362. 6225 Road, Montrose, CO 81401
Michelle Probert, Vanliner Insurance Co., One Premier Dr., St. Louis, MO 63026
Summer Rainey, Crawford Company, 2850 McClelland Dr., #1600, Ft. Collins, CO 80525
David B. Mueller, Esq., 101 So. 3rd St., #265, P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)