W.C. No. 4-615-445.Industrial Claim Appeals Office.
October 27, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Connick (ALJ) dated May 14, 2008, that denied and dismissed the claim for compensation. We affirm.
At the time of the hearing, the claimant was a 59-year-old certified nurse assistant who suffered from degenerative disc disease. The claimant contended that her nine years of employment with the employer either caused or aggravated her back condition. The ALJ concluded that the claimant had failed to carry her burden of showing that she suffered from a compensable occupational disease. Therefore, the ALJ denied and dismissed the claim.
On appeal, the claimant contends that the ALJ erred in finding that the claimant failed to prove that she had developed a compensable occupational disease. The claimant concedes that she had prior incidents involving her low back and that she suffered from degenerative disc disease in her spine. However, the claimant argues that her activities of daily living were essentially sedentary in nature in contrast to her work duties, which were often physical. The claimant argues that a worker exposed to at least eight years of such employment on a daily basis could not avoid developing work related degeneration of the spine. The claimant relies on the opinion of Dr. Moorer that the claimant’s advanced degenerative condition was not adequately explained by her medical history, genetics or smoking. The claimant finally argues that the only reasonable and rational conclusion that can be made in the present case is that the claimant’s work duties contributed to the development of an occupational disease and therefore unde Anderson
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v. Brinkhoff, 859 P.2d 819 (Colo. 1993) her condition is compensable. We are not persuaded.
As noted by the claimant § 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.
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. 2008 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, supra.
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. Section 8-43-304(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
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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.d. 1182 (Colo.App. 1990).
The ALJ, with record support, made the following pertinent findings of fact. The respondents’ medical expert opined that the claimant’s condition was unrelated to her work for the employer. Exhibit I at 12-14. The expert further opined that it was unlikely that this work contributed to the development of her low back pain or substantially aggravated it. Exhibit I at 13. Rather, the respondents’ expert found that it was likely that 100 percent of the claimant’s lumbar condition related to age-related degenerative changes, a genetic predisposition to back problems, the specific low back injuries described in the medical records, smoking, weight, and physical conditioning level. Exhibit I at 14.
The ALJ took note that the claimant’s expert witness originally expressed a contrary opinion. The claimant’s expert opined that based on the claimant’s nine years as a certified nurse assistant and her sedentary activities of daily living, the claimant’s work-related duties did have some contribution to her chronic degenerative disc disease and chronic and continued back problems. The claimant’s expert reasoned that the claimant’s activities of daily living were so sedentary that they would not account for her significant degenerative disc disease. The claimant’s expert apportioned 40 percent of the claimant’s lumbar disc disease and back complaints, as well as chronic back pain, to her work-related duties.
However, the ALJ also noted that the claimant’s medical expert revised his opinion after being made aware of certain injuries to the claimant’s back which occurred outside of the claimant’s employment. The ALJ with record support made the following findings regarding the revised opinions of claimant’s medical expert. The expert stated that while the claimant’s work was potentially a causative agent of her back pain, it appeared that her activities of daily living outside of her work caused her back pain. Moorer Depo. at 22-23, 37-38. The expert opined that the back injuries claimant sustained while moving a desk or riding an exercise bike could have caused her current condition. Moorer Depo. at 13-15. The expert opined at another point that it was reasonable to assume that the claimant’s work activities contributed to her eventual need for surgery. Moorer Depo. at 20-21, 35. However, when asked to opine as to the percentage claimant’s work activities contributed to the need for surgery he could offer no opinion and indicated that any opinion would only be speculation. Moorer Depo. at 35. The expert stated that it would take a physical activity to cause the type of progression evidenced on the claimant’s MRIs resulting in a bulging disc. Moorer Depo.
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at 37. However, he acknowledged that it was difficult to identify the activity causing the change in the MRIs. Moorer Depo. at 38.
In summary, the ALJ found that the claimant’s expert had given revised and somewhat conflicting opinions on causation after the expert was fully apprised of the facts involving the claimant’s medical history. Therefore, the ALJ concluded that the claimant’s expert failed to offer a credible opinion regarding whether the claimant’s work activities caused, aggravated or contributed to her back symptoms and need for medical treatment. In our opinion the ALJ drew reasonable inferences from the testimony of the claimant’s expert. The ALJ found that, after the medical opinion of the claimant’s expert was discounted the only persuasive expert medical opinion remaining was that of the respondents’ physician who stated that the claimant’s condition was caused fully by factors outside of work.
In addition the ALJ relied on other evidence, not in dispute, in denying the claim. The ALJ noted that the claimant’s smoking and obesity contributed to her back condition and its progression. The ALJ further took note that the claimant had back injuries outside of work. The claimant never reported to the employer that she believed her back problems were related to her work until she filed her claim for compensation.
We are not persuaded that the ALJ was compelled to find the only reasonable and rational conclusion was that the claimant’s work duties contributed to the development of an occupational disease. The claimant points to evidence in support of her claim. However, 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 issued May 14, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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RUTH PETTIGREW, LOVELAND, CO, (Claimant), LOVELAND GOOD SAMARITAN VILLAGE, LOVELAND, CO, (Employer), SENTRY INSURANCE, Attn: CHRISTA GLISCZYNSKI, STEVENS POINT, WI, (Insurer), RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ., FT COLLINS, CO, (For Claimant).
WHITE STEELE, PC, Attn: STEPHEN G SPARR, ESQ., DENVER, CO, (For Respondents).
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