W.C. Nos. 4-108-389, 4-251-155Industrial Claim Appeals Office.
October 9, 1998
FINAL ORDER
The respondents, Basic Capital Management and Wausau Insurance Company seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant sustained a compensable occupational disease and required them to pay medical and temporary total disability benefits. We affirm.
On December 13, 1991, the claimant suffered a compensable injury to her right wrist, while working as a banquet waitress. That injury is designated as W.C. No. 4-180-389 and was treated by Dr. Henderson.
In a report dated September 8, 1993, Dr. Henderson opined that the claimant’s continuing employment activities aggravated her condition, but that the claimant’s condition had not worsened since February 1992. The claimant continued to treat with Dr. Henderson through June 1994. Dr. Henderson referred the claimant to the Brookside Physical Therapy clinic for physical therapy. In August 1994 the claimant was diagnosed with right thumb and wrist tendinitis and discharged from physical therapy.
The claimant returned to Dr. Henderson in September 1994 with complaints of right shoulder and neck pain. Dr. Henderson referred the claimant to Dr. Schuler; who diagnosed neck and right rotator cuff impingement. In 1995 the claimant filed a workers’ compensation claim against the respondents and alleged a new work-related injury.
The ALJ found that Dr. Schuler reported the onset of shoulder and neck pain due to the claimant “working harder than normal 2-3 weeks prior” to September 9, 1994. The ALJ also credited Dr. Schuler’s opinion that the claimant’s continued work as a banquet waitress aggravated her condition and caused the impingement and/or tear of the claimant’s shoulder. Insofar as Dr. Schuler attributed the claimant’s shoulder and neck problems to the 1991 wrist injury, the ALJ found Dr. Schuler’s opinions unpersuasive.
Based upon these findings the ALJ determined that the claimant’s shoulder condition is not the result of a worsening of the 1991 injury. Rather, the ALJ found that the claimant sustained a new injury in the nature of an occupational disease to her shoulder and neck. Consequently, the ALJ denied a petition to reopen W.C. No. 4-180-389 and ordered the respondents to pay medical and temporary disability benefits due on account of the shoulder and neck problems.
On review, the respondents contend that there is no evidence to support the ALJ’s finding that the claimant’s shoulder and neck problems are the result of a new injury and not the natural and proximate consequence of the 1991 injury. We disagree.
As argued by the respondents, an industrial injury is the proximate cause of a subsequent disability if it is the necessary precondition or trigger of the disability. Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751
(Colo.App. 1988). Whether the claimant’s condition is the result of a prior injury, a new injury or an occupational disease is a question of fact. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
A claimant is not required to prove the cause of her condition by the presentation of medical evidence. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, insofar as medical evidence is presented, it is the ALJ’s sole prerogative to assess the credibility and probative weight of the evidence. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Moreover, the respondents concede that even uncontroverted medical evidence is not binding on the ALJ. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
The claimant testified that she did not experience shoulder or neck pain until the summer of 1994. (Tr. pp. 42, 48). Further, nothing in Dr. Henderson’s clinic notes and the Brookside Physical Therapy clinic records indicates that the claimant complained of, and was treated for shoulder or neck pain prior to September 1994. Under these circumstances the ALJ could, and did infer that the 1991 injury was not a necessary precondition to the development of the claimant’s shoulder and neck problems.
In addition Dr. Henderson opined that the claimant’s continuing work as a banquet waitress aggravated her condition, and Dr. Schuler agreed that the work could cause an aggravation. (Schuler depo. p. 18). Therefore, the record contains substantial evidence from which the ALJ could reasonably infer that the claimant’s shoulder and neck problems are the result of an occupational disease process, not a worsening of the 1991 injury. Accordingly, it is immaterial that the record contains some evidence which, if credited, might support a contrary result F.R. Orr Construction v. Rinta, supra, (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).
In reaching our conclusion, we reject the respondents’ contention that there is no evidence to support the ALJ’s finding that “Dr. Schuler attributed the claimant’s pain to “working harder than normal 2-3 weeks prior” to his examination on September 9, 1994. (Finding of Fact 7). The claimant testified that Dr. Schuler referred her to the Brookside Physical Therapy clinic for treatment, and that she went to the clinic on September 9, 1994. (Tr. p. 48). The record contains a physical therapy report dated September 9, 1994, which states “Mechanism of the injury: Patient didn’t wear brace and worked harder than normal two or three weeks ago.” At the bottom of the report is a physician’s signature.
There is no assertion that the claimant was treating with any other physician in September 1994, for shoulder pain. Further, the September 9 physical therapy report lists the claimant’s treating physician as Dr. Schuler. Under these circumstances, the ALJ could reasonably infer that the physician’s signature at the bottom of the September 9 physical therapy report is the signature of Dr. Schuler and that by signing the form, Dr. Schuler adopted the contents as his opinion. This inference is buttressed by Dr. Schuler’s September 2, 1994 report which states that the claimant’s onset of pain was 2-3 weeks before his exam. We also note that Dr. Schuler’s other reports appear to contain a stamped signature.
Moreover, because the record contains some evidence that Dr. Schuler did not attribute the claimant’s shoulder and neck problems to the 1991 injury, Dr. Schuler’s opinions are subject to conflicting inferences. It was the ALJ’s sole prerogative to resolve the conflict. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Therefore, we disagree with the respondents’ contention that Dr. Schuler’s opinion testimony is “so clear and free from inconsistencies that it would be impossible for the ALJ to use his testimony in any way to find that there had been an occupational disease.”
IT IS THEREFORE ORDERED that the ALJ’s order dated July 17, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 09, 1998 to the following parties:
Kathy Mary Ortiz, 1235 West 132d Pl., Westminster, CO 80234
Basic Capital Management, c/o Merchandise Mart, 401 E. 58th Ave., Denver, CO 80216
Lori Jamison, Southmark Corp., 2711 LBJ Freeway, #134, Dallas, TX 75234
Randy Stumpf, Wausau Ins. Co., P.O. Box 101517, San Antonio, TX 78201
Carol Keim, AIG Claim Services, Inc., 2201 E. Camelback, 4th Flr., P.O. Box 32130, Phoenix, AZ 85064
Kathleen M. North, Esq., 999 18th St., Ste 1600, Denver, CO 80202 (For the Southmark Respondents)
Jack LeProwse, Esq., 7390 Lowell Blvd., Westminster, CO 80030 (For the Claimant)
Harry A. King, Jr., Esq., 679 Grant St., Denver, CO 80203 (For the Basic Capital Respondents)
BY: _______________________