W.C. No. 4-431-755.Industrial Claim Appeals Office.
July 12, 2004.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ Henk) dated March 24, 2003, which required the respondent to pay the cost of medical treatment after maximum medical improvement (MMI). We affirm.
The claimant suffered an admitted industrial injury to her right upper extremity in 1997 while employed by the respondent. On July 14, 1998, the claimant was placed at MMI and released from treatment. However, the treating physician recommended the claimant not work at or above the shoulder or use tools in the right hand The claimant left the employment in October 1998 for personal reasons, and her subsequent attempts to be reemployed by the respondent were unsuccessful due to the work restrictions.
The claimant occasionally worked for Monfort starting in January 1999. Since August 1999 the claimant has been steadily employed at Monfort and assigned to trimming fat from meat by using a hook in her left hand and a knife in the right hand In a Final Order dated March 8, 2001, ALJ Schulman rejected the respondent’s contention the claimant suffered a new injury at Monfort and determined that her need for ongoing medical treatment was caused by the 1997 injury.
In April 2001 the claimant began treatment with Dr. Gerber. In August 2002, Dr. Gerber recommended additional treatment for the claimant’s right upper extremity. The respondent denied liability and argued the need for additional treatment was caused by a new injury at Monfort.
Expressly crediting the claimant’s testimony, ALJ Henk found the claimant’s pain complaints have remained the same since March 8, 2001, aside from “temporary flare ups.” ALJ Henk also determined the claimant’s job duties at Monfort had not changed since March 8, 2001. Therefore, ALJ Henk determined the respondent failed to prove a compensable new injury at Monfort. Instead, ALJ Henk credited Dr. Gerber’s opinion that the claimant’s ongoing symptoms are a direct and natural consequence of the 1997 injury. Therefore, ALJ Henk held the respondent liable for the cost of the additional treatment recommended by Dr. Gerber.
On review the respondent contends ALJ Henk’s finding that the claimant experiences temporary “flare ups” caused by her work at Monfort precluded ALJ Henk from imposing liability for the claimant’s medical treatment on the respondent. We disagree.
Initially, we note the respondent’s contention that it is unclear whether the 1997 injury was an accidental injury or occupational disease. However, ALJ Schulman explicitly found the claimant suffered an accidental injury. The respondent did not appeal that determination and consequently it is the law of the case. Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002), aff’d. in part rev’d. in part on other issues, Dworkin, Chambers Williams, P.C. v. Provo, ___ P.3d ___ (Supr. Ct. 921SC762, December 1, 2003); Mining Equipment Inc., v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993).
The applicable law provides that the claimant suffers a compensable new injury if the employment aggravates his condition from a prior industrial accident. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). The determination of whether the claimant’s condition is due to the natural progression of the pre-existing condition or a new industrial accident is one of fact for resolution by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We are bound by the ALJ’s factual determinations if they are supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Further, the claimant is not required to present medical evidence to prove the cause of her condition. See Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000
(Colo.App. 1986). To the contrary, the claimant’s testimony, if credited, may be sufficient to establish the cause of the need for treatment. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). To the extent expert medical testimony is presented, it is the ALJ’s prerogative to assess its weight and sufficiency. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, ALJ Henk explicitly determined that the claimant’s employment at Monfort did not cause, aggravate, or accelerate her condition from the 1997 injury. Rather, ALJ Henk determined that the claimant was symptomatic and remained symptomatic after she was released from medical treatment in July 1998. As argued by the respondent, ALJ Henk also determined the claimant experienced increased symptoms as a result of flare ups caused by activities of daily living and her work duties. However, ALJ Henk determined the claimant needed ongoing medical treatment regardless of the flare ups, and that the flare ups did not trigger of the need for further treatment.
The respondent’s arguments notwithstanding, ALJ Henk’s findings are supported by substantial evidence in the claimant’s testimony and the medical opinions of Dr. Gerber. (Claimant’s Hearing Exhibit 3, Dr. Gerber December 9, 2002). Further, the findings support ALJ Henk’s conclusion that the 1997 injury caused the need for ongoing medical treatment.
Moreover, even if we agreed with the respondent’s contention that the 1997 injury was an “occupational disease,” the result is unchanged. Responsibility for medical benefits due on account of an occupational disease is determined under the usual rules governing liability for workers’ compensation benefits. Thus, the insurer “on the risk” when medical expenses are “incurred” is the carrier that insured the employer whose conditions of employment were the proximate cause of the need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).
ALJ Henk’s findings reflect her determination that the Monfort employment did not cause the need for ongoing medical treatment. Therefore, the ALJ did not err in refusing to relieve the respondent from liability for future medical treatment. Under these circumstances, we need not address the testimony of Dr. Beatty, which the ALJ explicitly found unpersuasive. See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985) (“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).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 24, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Bill Whitacre
Catarina Pascual, Fort Morgan, CO, Excel Corporation, Fort Morgan, CO, Margaret Johnson, Crawford Company, Fort Collins, CO, Barbara J. Furutani, Esq., Denver, CO, (For Claimant).
Kathleen Mowry Fairbanks, Esq., Denver, CO, (For Respondent).