W.C. No. 4-435-461Industrial Claim Appeals Office.
November 3, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied the claim for workers’ compensation benefits. The claimant argues the ALJ erred as a matter of law in crediting the respondents’ expert medical testimony on the issue of causation. We affirm.
The claimant was employed as a machine operator. He was required to stand at the machine for 8 hours per day, and he frequently pressed a foot pedal. In January 1999 the claimant began to experience low back pain, which eventually caused him to seek medical treatment on June 29, 1999.
The claimant was treated by Dr. Kindsfater on June 29. Following x-rays and an MRI, Dr. Kindsfater noted mild degenerative changes at the L5-S1 disc space and referred the claimant to Dr. Bender, an expert in physical medicine. Dr. Bender recommended physical therapy, which did not benefit the claimant. In February 2000 the claimant underwent facet joint injections, but these failed to relieve the claimant’s pain.
At hearing, the claimant presented several reports of Dr. Kindsfater opining that the claimant’s back pain is causally related to standing at the machine during his work shifts. Dr. Kindsfater specifically noted the claimant’s symptoms subsided when the claimant was not working and increased during work. (Kindsfater report, November 22, 1999).
The respondents presented the testimony and report of Dr. Shaw, who examined the claimant in March 2000. Dr. Shaw opined the claimant’s back pain is most probably idiopathic in origin, and not causally related to the activities of his employment. In support of this opinion, Dr. Shaw stated the claimant’s symptoms, including “global leg pain” and upper extremity pain, do not correlate with any identifiable pathology, including mild degeneration at the L5-S1 disc space. Further, Dr. Shaw reviewed a videotape depicting the claimant’s employment duties. Based on his observation of the videotape and review of the medical literature, Dr. Shaw opined there is no adequate statistical evidence demonstrating a causal relationship between static work postures and low back disorders. Finally, Dr. Shaw stated the mere manifestation of symptoms during an activity, such as standing at a machine, does not establish a causal relationship between the activity and the underlying condition.
The ALJ denied the claim based on an occupational disease because he found the claimant failed to prove any causal relationship between his symptoms and the duties of his employment. In so doing, the ALJ explicitly credited the opinions of Dr. Shaw concerning the issue of causation, and found them more credible than the opinions expressed by Dr. Kindsfater.
On review, the claimant contends the ALJ erred in crediting Dr. Shaw’s opinion. The claimant argues Dr. Shaw’s opinion is incredible as a matter of law because hard, certain evidence establishes the claimant suffers from a degenerative condition of the spine, and because Dr. Shaw admitted that the claimant suffers from soft tissue back pain. (Tr. p. 66). We reject this argument.
In order to establish a right to benefits for an occupational disease, the claimant must prove the existence of a disease which was directly and proximately caused by the hazards of the claimant’s employment. Section 8-40-201(14), C.R.S. 2000 Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). Of course, the claimant may prove a compensable disease if he demonstrates a work-related aggravation of a preexisting condition. See Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). The question of whether the claimant proved the requisite causal relationship is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1136, May 11, 2000); Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Because the question of whether the claimant proved a causal relationship is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. 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. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In particular, we note that determining the weight and credibility of expert medical opinion on the issue of causation is a matter within the fact-finding authority of the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). We may not interfere with an ALJ’s determination to credit testimony except in the “extreme circumstance” where it is so overwhelmingly rebutted by hard, certain evidence that the ALJ would necessarily err in crediting the testimony. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558, 561 (Colo.App. 2000).
The claimant’s argument notwithstanding, there is no legal basis for interfering with the ALJ’s decision to credit the opinions of Dr. Shaw over those of Dr. Kindsfater. Even if we are to assume the record contains hard, certain evidence the claimant has mild degenerative changes at L5-S1, that evidence does not refute Dr. Shaw’s opinion that the claimant’s back symptoms cannot be causally connected to the duties of his employment. The import of Dr. Shaw’s opinion is that the degenerative changes at L5-S1 are of no significance in explaining the claimant’s back pain because the changes do not correlate with the claimant’s clinical symptoms. (Tr. pp. 46-47). More importantly, Dr. Shaw based his opinion on the lack of objective evidence establishing a specific medical cause of the claimant’s diffuse symptoms, as well as medical literature documenting the absence of a statistical correlation between static posture and the development of low back pain. Finally, Dr. Shaw disputed Dr. Kindsfater’s opinion that causation could be inferred merely because the claimant experienced symptoms at work. Indeed, Dr. Shaw pointed out that the claimant’s symptoms did not significantly subside after the claimant ceased working. (Shaw report pp. 9, 11-12). Under these circumstances, we would usurp the fact-finding authority of the ALJ if we held the ALJ was required to credit Dr. Kindsfater rather than Dr. Shaw.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 23, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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. 2000. 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 decision were mailed November 3, 2000
to the following parties:
Jose M. Nieto, 237 Bishop, Ft. Collins, CO 80524
Mark Hayes, Star Precision, Inc., 4117 S. Valley Dr., Longmont, CO 80504-9314
Dawn Bauer, St. Paul Fire Marine Insurance Company, P. O. Box 64907, St. Paul, MN 55164-0907
Jess M. Perez, Esq., 1102 5th St., #A, Greeley, CO 80631 (For Claimant)
Michael J. Barbo, Esq., 2000 S. Colorado Blvd., #2-450, Denver, CO 80217-5410 (For Respondents)
BY: A. Pendroy