W.C. No. 4-621-629.Industrial Claim Appeals Office.
May 2, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated December 13, 2006, that denied the claimant’s request for a change of physician and denied the claimant’s request for medical benefits related to her worsened depression and cervical pain. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a compensable industrial injury to the left ear on March 10, 2004. The claimant had preexisting hearing loss, tinnitus and possible Meniere’s disease on the right side since 1999. The claimant was unable to hear conversation on the right and wore a hearing aide from time to time on the right side. The claimant also had some mild hearing loss on the left side. The claimant underwent further hearing tests in 2002 with similar results. The claimant received authorized treatment for the industrial injury from Dr. Ogrodnick, who opined that the claimant required bilateral hearing aids because the existing right hearing aid was an analog device that would interfere with a newer digital device on the left. On August 13, 2004, Dr. Ogrodnick stated that the claimant had reached maximum medical improvement for her left ear injury and had not sustained any permanent impairment as a result of the compensable accident. He based that opinion on the fact that tests of the claimant’s hearing on the left demonstrated very minimal hearing loss compared to the test results from 2002. The ALJ also found that the claimant was provided with a new digital hearing aid to treat her hearing loss on the left side, and that it caused static in the right-sided hearing aid, which was an analog device. The claimant removed the right
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hearing aid and testified that as a result she began to change her head and neck movements when she listened to people speaking. She also testified that she began to experience neck problems as a result of wearing only the single hearing aid, and that she experienced increased depression as a result of the results of the compensable accident. The ALJ credited the opinions of Dr. Ogrodnick that the claimant’s hearing loss did not result in her neck pain or in any increase in her depression.
Based upon her factual findings, the ALJ ordered the respondents to provide to the claimant symmetrical digital hearing aids. However, the ALJ denied the claimant’s request for medical benefits to treat the claimant’s neck pain and depression. The ALJ further denied the claimant’s request to change authorized treating physicians from Dr. Ogrodnick to Dr. Leppard. The claimant appealed the ALJ’s order.
The claimant first contends the ALJ abused her discretion in finding that the claimant had presented insufficient persuasive evidence to demonstrate that her cervical pain was related to her industrial injury. We disagree that the ALJ erred or abused her discretion.
Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The evidence regarding the causes of the claimant’s neck pain was conflicting and, as such, there was certainly evidence supporting the claimant’s theory. Dr. Leppard opined that the claimant developed severe left cervical myofascial pain and cervical torticollis, as a result of always turning to the right in order to hear with her left ear, and the claimant testified that she believed that her postural changes while listening caused the neck problems. However, the ALJ was not compelled to credit that evidence. She ALJ reasoned that the claimant’s theory that her current neck pain is a result of wearing only the new left hearing aid after her industrial injury was “questionable” because her left ear had been the stronger ear for many years, even with a hearing aide. Further, the ALJ did not credit the claimant’s testimony as persuasive. Specifically, she found that the claimant’s testimony regarding when she began to wear the new hearing aid, when she removed the right hearing aid, and when she began to experience neck pain was very inconsistent, confused and unpersuasive.
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The evidence conflicting with Dr. Leppard’s opinion and the claimant’s testimony amply supports the ALJ’s order. On March 7, 2006, Dr. Ogrodnick examined the claimant and she reported left-sided neck pain attributed to turning her head constantly to the right to hear people in her reading group at work with her left ear. Dr. Ogrodnick opined that the neck pain was probably not related to the hearing loss because she had a severe flare-up of the pain for unknown reasons on the previous Sunday when she was not at work. Exhibit X. The ALJ further found that the claimant began to wear the new digital hearing aid in approximately October of 2004, and did not begin to experience neck pain until approximately September 2005. The ALJ expressly credited the opinion of Dr. Ogrodnick that the claimant’s neck pain was not related to wearing only her left hearing aid. She further determined that Dr. Leppard’s opinion regarding the neck pain was not as persuasive as Dr. Ogrodnick’s opinion because she was unable to review any of the previous medical records and only examined the clamant one time. Leppard Depo. at 16.
The claimant’s arguments notwithstanding, there is substantial evidence in the opinion of Dr. Ogrodnick and other evidence in the medical record as outlined by the ALJ to support her determination that the claimant failed to sustain her burden to prove a causal connection between her cervical condition and the employment. Consequently, the existence of other evidence including Dr. Leppard’s opinion which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963);
The claimant also contends that the ALJ erred in determining that the claimant had presented insufficient evidence to demonstrate that a worsening of her pre-existing depression resulted from her industrial injury. Again, we disagree.
The claimant notes that she testified that she experienced depression as a result of her failure to hear conversation around her and her developing neck pain. She further contends that because there was no evidence to the contrary the ALJ necessarily abused her discretion by denying the claimant’s request for medical benefits related to her worsened depression.
Even assuming, as claimant contends, that her account of worsening depression was undisputed, the ALJ was not required to accept his testimony as credible. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). However, here there was evidence that contradicted the claimant’s testimony. The ALJ found that the claimant did not report symptoms of depression to Dr Ogrodnick during treatment and was noted to be in good spirits. Further the ALJ found the claimant made a single report of a worsening of her pre-existing depression almost two years after the industrial injury. The claimant’s medical expert was unable to state whether the claimant’s industrial injury
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and treatment resulted in any aggravation of her pre-existing depression. Leppard Depo. at 15
We again note that to prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2006. Under this standard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We perceive no error in the ALJ’s order regarding the issue of the claimant’s depression.
Finally, the claimant contends that the ALJ erred in denying her request for authorization to change her treating physician to Dr. Leppard. Under the Workers’ Compensation Act, claimants are entitled to medical treatment and supplies that are reasonably needed to cure and relieve the effects of the injury. Section 8-42-101(1), C.R.S. 2006. But, the employer or insurer has the right in the first instance to select a claimant’s physician. Section 8-43-404(5)(a), C.R.S. 2006. Section 8-43-404(5)(a) provides that “upon the proper showing to the division, the employee may procure its permission at any time to have a physician of the employee’s selection attend said employee. . . .” The ALJ has broad discretion in determinating whether a claimant has made a proper showing to authorize a change of physician pursuant to §8-43-404(5)(a). Landeros v. CFI Steel, L.P., W.C. No. 4-395-314
(October 26, 2000). Thus, we may not interfere with the decision unless it is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Here, the ALJ acknowledged that the claimant would prefer to be treated by Dr. Leppard. However, mere dissatisfaction of the claimant with the physician or other personal reasons does not compel the ALJ to approve a change of physician. See, Greager V. Industrial Commission, 701 P.2d 168(Colo.App. 1985).
The claimant also contends that the authorized physicians did not treat or appreciate the her cervical condition. However, as noted above the ALJ found that the claimant had not established that her cervical pain was related to her industrial injury. Hence, the ALJ was not compelled to consider whether the requested change of physicians would improve the treatment of her cervical condition or her depression.
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The ALJ found that no breakdown in the doctor-patient relationship had been demonstrated. The ALJ further concluded that the claimant’s preference did not rise to the level of a proper showing for a change of physician. The ALJ’s findings are supported by the record and therefore binding on review. See May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Moreover, given the ALJ’s reasonable inference from the record that the claimant received adequate treatment from Dr. Ogrodnick, we cannot state that her refusal to authorize a change of physicians was a decision that exceeded the bounds of reason.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 13, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________ Curt Kriksciun
________________________ Thomas Schrant
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Judy Pohlod, Colorado Springs, CO, Colorado Springs School District 11 Thellene F. Crawford, Colorado Springs, CO, Monica J. Gomez, Esq., Colorado Springs, CO, (For Claimant).
Clisham, Satriana, Biscan, LLC Patricia Jean Clisham, Esq., Denver, CO, (For Respondents).
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