W.C. No. 4-231-590Industrial Claim Appeals Office.
April 12, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) which denied his claim for benefits associated with an injury which allegedly occurred on October 17, 1994. We affirm the order in part, and set it aside in part.
The claimant testified that while working on October 17 he sustained what he believed to be a “hernia.” The claimant reported abdominal pain to the employer on October 18, and was examined by Dr. Hoyle on that date.
In a report dated March 14, 1995, Dr. Hoyle stated that the claimant’s examination on October 18 “suggested muscle strain” but no hernia. Dr. Hoyle took the claimant off work for one week and saw him again in follow-up on October 26, 1994. At that time, the claimant was complaining of frequent urination and low back pain “for three or four days.” Dr. Hoyle referred the claimant to Dr. Wills for treatment of a possible urinary infection.
The ALJ found that the claimant did not sustain any back injury as a result of the October 17 incident. In support of this conclusion, the ALJ recognized that the claimant had an extensive history of back problems, including two surgeries prior to the industrial injury. In fact, the claimant was under “active care” for back problems shortly before the October 17 incident, and was on light-duty restrictions. Moreover, the ALJ found that the claimant did not report any back injury to the employer, or to Dr. Hoyle, on October 18. Further, the claimant failed to disclose his back history to Dr. Herrington during an examination on December 6, 1994. Under these circumstances, the ALJ denied the claim for benefits.
I.
On review, the claimant first contends that the ALJ erred in failing to find that the October incident caused a back injury. The claimant asserts that the ALJ made no findings of fact concerning how the claimant’s prior back problems caused the disability after October 17. Moreover, the claimant argues that the ALJ was required to find a compensable aggravation of the prior back problems because the claimant was working beyond his pre-existing restrictions on October 17. We reject these arguments.
The question of whether an industrial injury is the cause of disability and need for treatment is one of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying the substantial evidence test we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996).
The claimant’s argument notwithstanding, the basis of the ALJ’s order concerning the back condition is clear. The ALJ was persuaded that the claimant’s back symptoms pre-dated the October 17 incident, and that the incident did not aggravate the claimant’s condition.
The ALJ’s determination is supported by evidence that the claimant did not report any back injury on October 18, and did not experience any symptoms until several days later. Moreover, prior to the industrial injury, the claimant had a history of back problems, restrictions, and ongoing treatment. Under these circumstances, the ALJ’s pertinent findings of fact are amply supported by the evidence.
We also reject the claimant’s argument that there is “no evidence” that he failed to give Dr. Herrington a complete history. The claimant himself testified that the history provided to Dr. Herrington was less than complete. (Tr. pp. 32-33). Moreover, Dr. Aschberger opined that, based on his review of the record, the history provided to Dr. Herrington was not complete.
The claimant also suggests that there is “no evidence” that Dr. Herrington would have changed his mind concerning causation if he had received a complete history. However, this point is irrelevant. It was for the ALJ to assess the weight of Dr. Herrington’s opinions in view of the fact that he did not receive a complete history. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
II.
The claimant also contends that the ALJ failed to make any findings of fact and conclusions of law concerning benefits for the “abdominal strain” diagnosed by Dr. Hoyle. We agree with this argument, and therefore, remand for findings on this issue.
Pursuant to § 8-43-301(8), C.R.S. (1995 Cum. Supp.), we may set aside an order if the “findings of fact are not sufficient to permit appellate review.” Here, the ALJ made clear that he does not believe that any of the claimant’s back problems are associated with the October 17 incident. However, the ALJ failed to determine whether the claimant sustained an abdominal injury on October 17, and whether any disability and need for medical treatment ensued from such an injury. The ALJ merely indicated that, if the claimant had an abdominal strain, it has since resolved. Therefore, the matter must be remanded for entry of an order which resolves this issue.
IT IS THEREFORE ORDERED that the ALJ’s order, dated June 19, 1995, is set aside insofar as it denied compensation for an “abdominal” injury which the claimant allegedly sustained on October 17, 1994. The matter is remanded for entry of a new order concerning whether or not the claimant sustained an abdominal injury, and if so, the amount and type of compensation to be awarded for such injury.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 12, 1996 to the following parties:
Timothy R. Patrick, 1423 Van Buren St., Pueblo, CO 81004
Lankford Construction Co., Inc., P.O. Box 285, Grayslake, IL 60030-0285
CNA Insurance Co., % Diana Gelbart, P.O. Box 17369, Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349
(For the Claimant)
Tama L. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
By: _______________________