W.C. No. 4-344-2693Industrial Claim Appeals Office.
October 19, 1998
ORDER OF REMAND
The pro se claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied her claim for medical and temporary disability benefits. The claimant contests numerous findings of fact which led the ALJ to determine that the claimant’s herniated disc was not causally related to the industrial injury of April 17, 1996. Because we conclude that one of the ALJ’s findings of fact is not supported by the evidence, we set aside the order and remand for entry of a new order.
The ALJ’s findings may be summarized as follows. Prior to the industrial injury of April 17, 1996, the claimant had an extensive medical history including back surgery in the spring of 1995. In the early part of 1996, the claimant was receiving treatment for hip pain, left knee pain, headaches, neck pain, and chronic back pain.
On April 17, 1996, the claimant experienced a fall which the ALJ found arose out of and in the course of employment. In October 1996, the claimant was diagnosed with a herniated disc at the L5-S1 level. The disc was surgically repaired by Dr. Janssen in January 1997.
The record contains conflicting evidence concerning whether or not the April 1996 injury was the cause of the disc herniation. The ALJ noted that the claimant’s primary treating physician, Dr. Towbin, saw the claimant on April 29, 1996, and his office note does not reflect that the claimant made “any complaints of new, different, or aggravated back pain.” Moreover, Dr. Towbin examined the claimant ten times from June 23, 1996 through December 23, 1996, and the records do not make mention of the April 17 fall or any significant increase in back symptoms. The records of other physicians who saw the claimant during this period of time also lack evidence of a significant increase in pain.
In view of these records, Dr. Primack and Dr. Dwyer opined that there was no causal relationship between the April 17 injury and the disc herniation. Conversely, Dr. Janssen opined that the disc herniation was probably caused by the April 17 injury.
Under these circumstances, the ALJ found that the claimant failed to carry her burden of proof to establish a causal relationship between the injury and the herniation. In support, the ALJ relied on the lack of medical documentation evidencing increased symptoms after April 17, and he credited the opinions of Dr. Primack and Dr. Dwyer. The ALJ discredited the opinion of Dr. Janssen, and found that from “December 31, 1996, until July 31, 1997, there is no report of the April 17, 1996 fall to Dr. Janssen.” (Finding of Fact 20). Consequently, the ALJ denied the claim for benefits.
On review, the claimant disputes the vast majority the ALJ’s findings of fact. Among the disputed findings is the ALJ’s statement that the claimant made no report of the April 17 injury to Dr. Janssen from December 31, 1996 until July 31, 1997. We agree with the claimant that this finding is not supported by substantial evidence in the record.
Generally speaking, the question of whether there is a causal relationship between an industrial injury and a subsequent need for treatment is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we must uphold the ALJ’s findings of fact concerning causation if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). However, if the ALJ finds there is “no evidence” of an alleged fact, we may not assume that the ALJ simply discredited evidence which is contained in the record. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
Here, as the claimant argues, the record includes Dr. Janssen’s report dated December 31, 1996. The report contains the following statement:
“Kathryn is here today for evaluation. She is a registered nurse in rehab, whom I have seen before/who works for Intercorp. She says she was in her usual state of fair to good health until 1995 when she sustained a fall down some stairs. She had a disc herniation, which is documented at the L5-S1 level, eccentric and to the right. She was managed by Dr. Koster [sic] for a diskectomy, and was hospitalized for approximately two days. She did extremely well following the surgery, by her report, for right sciatica and calf pain. She states the approximately nine months ago she had a second fall down the stairs when she lost her balance. She had a recurrent disc herniation, significant back pain, as well as right leg pain.” (Emphasis added).
Thus, contrary to the ALJ’s Finding of Fact 20, the record does contain evidence suggesting the claimant reported the April 17 injury to Dr. Janssen on December 31, 1996. Although the December 31 report does not explicitly mention an injury on April 17, 1996, the statement that the injury occurred “approximately nine months ago” refutes the statement that the claimant made no report of an injury during the critical time frame.
Moreover, we cannot say the ALJ’s finding of fact constitutes harmless error. Apparently, the ALJ discredited Dr. Janssen’s opinion partly because the ALJ determined the claimant did not report the April 17 injury until long after December 31, 1996. We cannot say how the ALJ might have evaluated Dr. Janssen’s opinion had the ALJ recognized that on December 31, the claimant did report a spring 1996 back injury. Further, the fact that the claimant reported the injury to Dr. Janssen might influence the ALJ’s assessment of the claimant’s testimony that she reported increased back pain after April 1996, but other physicians failed to record this information. (Eg. Tr. pp. 37-38).
Under these circumstances, the matter must be remanded to the ALJ for entry of a new order concerning the issue of causation. We need not address the claimant’s other arguments concerning the findings of fact because the ALJ must reassess the evidence and enter an entirely new order. In reaching this result, we should not be understood as expressing any opinion concerning the proper resolution of the causation issue, or the weight and credibility of the evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 1998, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed October 19, 1998 to the following parties:
Kathryn L. Millner, 7504 Paul Place, Loveland, CO 80537
International Rehabilitation Assoc., Inc., 6 Inverness Ct. E., #100, Englewood, CO 80112-5518
Pacific Employers Insurances Co., c/o CIGNA Companies, P.O. Box 2941, Greenwood Village, CO 80150-0141
Bernard Woessner, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
BY: _______________________