W.C. No. 4-341-138Industrial Claim Appeals Office.
April 22, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his claim for medical and temporary disability benefits. The claimant argues the ALJ applied an incorrect burden of proof in concluding that he failed to prove a compensable injury arising out of his employment. The claimant also argues that the ALJ failed to consider medical evidence supporting the claimant’s position. We affirm.
The claimant testified that he sustained a compensable injury while cutting plywood on May 20, 1997. The claimant contended this injury constituted an aggravation of a preexisting low back condition.
However, the ALJ found the claimant’s testimony was not credible. Instead, the ALJ credited the testimony of two coworkers who stated the claimant complained of back problems since May 1996, and that these problems required the claimant to miss work and perform modified duties between May 1996 and May 1997. The ALJ also resolved conflicts in the medical evidence against the claimant. Consequently, the ALJ concluded claimant failed to prove that his condition resulted from an injury arising out of and in the course of employment.
I.
On review, the claimant first contends the ALJ applied an unreasonably high standard of compensability by requiring him to prove that the alleged injury represented a “substantial aggravation” of his preexisting condition. In support of this argument, the claimant relies on the ALJ’s remarks at the conclusion of the hearing. At one point, the ALJ asked claimant’s counsel which medical records demonstrated that the claimant’s “condition has been substantially aggravated from his previous ones?” (Tr. p. 64) The ALJ also stated that she did not “feel it is sufficient to show that this situation that happened in May of 1997 was enough of an aggravation to create a new injury.” (Tr. p. 66) We find no error.
An injury is compensable if it is proximately caused by an injury or occupational disease arising out of and in the course of the claimant’s employment. Section 8-41-301(1)(b) (c), C.R.S. 1998. As the claimant argues, the mere existence of a preexisting condition does not defeat compensability if the work-related injury “aggravates, accelerates, or combines with a disease or infirmity to produce the disability for which workers’ compensation is sought.” H H Warehouse v. Vicory, 805 P.2d 1167,1169 (Colo.App. 1990).
The claimant must demonstrate by a preponderance of the evidence that he sustained an injury arising out of and in the course of employment, and that the injury is the proximate cause of the disability and need for treatment. Madden v. Mountain West Fabricators, ___ P.2d ___ (Sup.Ct. No. 97SC856, April 12, 1999) Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981); § 8-43-201, C.R.S. 1998. The questions of whether the claimant proved a compensable injury, and whether the injury is the cause of the disability, are issues of fact for determination by the ALJ. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
In expressing findings of fact concerning causation, the ALJ is not held to a standard of absolute clarity. Rather, it is sufficient for the ALJ to render findings concerning the evidence which she finds determinative of the issues involved, and we must presume conflicting evidence was rejected. Cooper v. Industrial Claim Appeals Office, supra. Further, it is the ALJ’s written findings, not her oral remarks, which are subject to our review. Section 8-43-215, C.R.S. 1998; § 8-43-301(2), C.R.S. 1998; Neoplan USA Corp. v. Industrial Commission, 721 P.2d 157 (Colo.App. 1987).
Here, the ALJ expressly applied the preponderance of the evidence standard in assessing the evidence of causation. (Conclusions of Law 1 2). The written findings demonstrate that the ALJ did not impose any extraordinary burden of proof on the claimant, but merely found that the claimant’s evidence was insufficient to establish the existence of a May 20, 1997, industrial injury, or that any such injury was the cause of the alleged symptoms. Further, the ALJ’s oral remarks at the end of the hearing occurred during a discussion with counsel concerning inferences to be drawn from the evidence, and do not constitute written findings and conclusions. Thus, there was no error.
II.
The claimant next contends the ALJ’s order is not supported by substantial evidence because she failed to consider “supporting factual evidence regarding the new incident” which allegedly occurred on May 20, 1997. The claimant relies principally on the report of Dr. Martinek dated June 5, 1997, which states the claimant was not having any back pain or radicular symptoms prior to May 20. The claimant also points out that the medical records do not indicate “continuous treatment” between May 1996 and May 1997. We perceive no error.
Because the questions of whether the claimant proved a compensable injury, and whether the injury caused disability, are factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; City of Durango v. Dunagan, supra. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). It is the ALJ’s sole province as the finder of fact to assess the weight and credibility of medical evidence pertaining to causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The ALJ need not credit medical evidence even if it is uncontradicted Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
Here, the ALJ’s finding that the claimant failed to prove a compensable injury which caused disability and the need for treatment is supported by substantial evidence. The ALJ was not required to credit the claimant’s testimony. Neither was she obliged to credit Dr. Martinek’s report, which was based on history provided by the claimant. Further, the ALJ was persuaded by testimony suggesting that the claimant suffered from a preexisting back condition which caused persistent pain and disability between May 1996 and May 1997. Thus, there is ample basis for the ALJ’s conclusion that the claimant failed to prove any injury in May 1997.
It is true that some evidence in the record would support contrary findings and conclusions. However, we are not free to substitute our judgment for that of the ALJ concerning the conclusions to be drawn from the record. City of Durango v. Dunagan, supra. Further, the ALJ’s order is not defective because the ALJ failed to make specific findings concerning Dr. Martinek’s report. The basis of the order is clear and the ALJ explicitly rejected that portion of the medical evidence favoring claimant Cooper v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 9, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain ___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1998.
Copies of this decision were mailed April 22, 1999
to the following parties:
Thomas Martinez, 48 Barclay, #3, Pueblo, CO 81005
Mark Marshall, SOS Staffing Services Inc., 1415 S. Main, Salt Lake City, UT 84115
Bankers Standard Insurance Co, P.O. Box 2941, Greenwood Village, CO 80150-0141
Karen Heser, CIGNA Property Casualty, P.O. Box 172000, Salt Lake City, UT 84115
Joseph Ruppert Esq., 226 West “B” Street, P. O. Box 8087, Pueblo, CO 81008 (For Claimant)
Kathleen M. North, Esq., 999 18th Street, #1600, Denver CO 80202 (For Respondents)
By: jls