W.C. No. 4-712-015.Industrial Claim Appeals Office.
October 28, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated May 8, 2008, that determined that the claimant had not sustained a compensable occupational disease and that therefore denied and dismissed the claim. We affirm.
A hearing was held on the issue of whether the claimant had sustained an occupational disease and, if so, whether he was entitled to medical benefits and temporary disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked for the employer in a variety of positions, including 17 years operating a “slitter.” He operated slitters for 15 years and then worked in administrative positions for four years. He returned to a position operating a slitter for the last two years that he worked for the employer. The ALJ credited the testimony of the claimant’s supervisor in 2005 and 2006, Dave Ball, that operation of the slitter was not heavy work and no awkward movements are required. Ball also testified that the machine was designed so that the operator is able to move film weighing up to 530 pounds using only approximately ten pounds of force. The claimant contended that 14 to 16 months after he returned to the slitter position he developed stiffness and soreness in his shoulders and numbness in his hands. The claimant attributed bilateral problems in his shoulders to his operation of the slitter machines. The ALJ also noted that, although the claimant largely denied preexisting problems with his shoulders, the medical records disclosed numerous such problems, which the ALJ recounted in the order.
The ALJ also entered findings concerning the medical records, including the report of the claimant’s personal physician, Dr. Oligmueller, that on July 26, 2008, the
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claimant reported bilateral shoulder pain for approximately ten months. Dr. Oligmueller referred the claimant for x-rays, which indicated extensive degenerative changes in both shoulders. The employer’s designated provider, Dr. Charbonneau, evaluated the claimant on August 7, 2006, and reported that the claimant initially denied prior shoulder problems but then stated that he had had an injury while playing football in 1980. Dr. Watkins evaluated the claimant on August 14, 2006, and referred him for x-rays, which showed “fairly marked osteoarthritic and posttraumatic changes of both shoulders. . . .” Dr. Young performed an independent medical examination and reported that the claimant’s work probably exacerbated his condition and may have caused his rotator cuff tear. Dr. Young also noted that the claimant did not recall any previous injuries, but the doctor stated that it would be “very unusual” for such a degenerative condition to have resulted solely from repetitive activity. Dr. Reichhardt also evaluated the claimant and, although he initially stated that the claimant’s work activities contributed to his problems, he testified at the hearing that he had reviewed additional medical records and changed his opinion. He testified that the claimant’s shoulder problems were not related to his work. The ALJ credited that opinion of Dr. Reichhardt’s.
Based upon his factual findings, the ALJ concluded that the claimant failed to carry his burden of showing either that he had sustained an occupational disease or that his work duties caused, intensified, or aggravated his shoulder condition. Accordingly, the ALJ denied and dismissed the claim.
The claimant appealed the ALJ’s order and argues that the factual record compels the conclusion that he sustained a compensable occupational disease. In this regard, the claimant recites the evidence and testimony that supports the claim. However, because the ALJ’s factual findings are supported by substantial evidence in the record and because he correctly applied the relevant law, we perceive no error in the order.
As noted, the claimant contended that his working conditions resulted in an occupational disease, which in turn caused his various symptoms. Section 8-40-201(14), C.R.S. 2008 defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
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The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under § 8-40-201(14), C.R.S. 2007 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought. Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review under the substantial evidence standard is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, Dr. Reichhardt testified at the hearing that his prior opinion concerning the cause of the claimant’s condition had changed based upon the review of further medical records. At the time of the hearing, the doctor was of the opinion that the claimant’s shoulder condition was not attributable to his work with the respondent employer. Tr. at 99. Dr. Reichhardt’s opinions support the ALJ’s factual findings, which in turn support the conclusion that the claimant did not sustain an occupational disease. Moreover, the ALJ correctly stated the law and the various legal standards applicable to his determination. Based largely upon Dr. Reichhardt’s opinions, the ALJ was unpersuaded that the claimant carried his burden of showing that he suffered from an occupational disease. The claimant’s arguments notwithstanding, we may not usurp the ALJ’s fact-finding function by reweighing the evidence in an attempt to reach inferences different
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from those he drew from the factual record. The claimant on appeal has identified and summarized the evidence supporting his claim for a compensable occupational disease; however, the substantial evidence standard of review requires us to disregard contrary evidence. Therefore, the existence of evidence in the record from which the hearing officer could have drawn contrary inferences does not provide a basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 8, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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TIMOTHY CHACON, PLATTEVILLE, CO, (Claimant), EASTMAN KODAK COMPANY, Attn: ANN GARBACZ, C/O: WORKERS’ COMPENSATION, ROCHESTER, NY, (Employer), GALLAGHER BASSETT SERVICES, Attn: KAREN CLAUSSEN, ENGLEWOOD, CO, (Insurer), BOB RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ., FT COLLINS, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, PC, Attn: DAVID J DWORKIN, ESQ., DENVER, CO, (For Respondents).
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