W. C. Nos. 4-689-414, 4-689-414.Industrial Claim Appeals Office.
March 13, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated October 18, 2006 that found the claimant sustained a compensable injury and that denied the respondent’s request to apportion corresponding medical benefits. We affirm.
The ALJ found that the claimant injured his left shoulder, which required the surgical repair of a torn rotator cuff on March 31, 2005. On May 19, 2006, the claimant sustained a new rotator cuff tear to his left shoulder caused by moving a box of potatoes. The ALJ found that this injury was a new one and did not result from a prior injury or condition. The ALJ referred to the opinions of various medical providers, as well as the claimant’s testimony, in support of his findings. The ALJ therefore declined to apportion medical benefits and ordered the respondents to pay all reasonably necessary medical expenses.
On appeal the respondents argue that the ALJ erred by not apportioning medical benefits based on the claimant’s prior shoulder injury. The respondents also assert that temporary total disability benefits should be apportioned; however, the ALJ’s order does not list that issue as one to be adjudicated and does not address or resolve liability for temporary total disability benefits. Moreover, the ALJ reserved all other issues for future determination. Accordingly our review here is restricted to the question of whether the ALJ erred by not apportioning medical benefits.
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The respondents note that the law concerning apportionment is presently unsettled. However, we conclude that the outcome of this matter turns on the question of whether the ALJ’s decision is supported by substantial evidence. This is because the question of whether apportionment is appropriate is essentially one of fact. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Similarly, the extent to which various causative factors contributed to the claimant’s disability or need for medical treatment is also a question of fact for the ALJ. It is only where reasonable minds can draw but one inference that the issue of causation becomes one of law. Schrieber v. Brown Root Inc., 888 P.2d 274 (Colo.App. 1993). Because these questions are factual in nature, we are bound by the ALJ’s determinations if they are supported by substantial evidence in the record. 8-43-304(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). 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 is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 2003).
In support of his determination that apportionment was inappropriate, the ALJ credited as “highly persuasive” the opinion of Dr. Copeland. Findings of Fact, Conclusions of Law, and Order (Order) at 2, ¶ 5. Dr. Copeland opined that the claimant sustained a “reinjury” and “an exacerbation of a preexisting condition” that was both substantial and permanent as a result of the incident at the respondent employer’s. Exhibit 5 at 27. The ALJ also found persuasive Dr. Utt’s opinion describing the claimant’s injury as an exacerbation, which the ALJ characterized as amounting “to an opinion that Claimant experienced a new, aggravating event, as opposed to a `bump along the road’ in the natural progression of Claimant’s earlier left shoulder injury.” Order at 2, ¶ 5; Exhibit 6 at 43. The ALJ found “highly credible and persuasive” certain opinions of the physician who performed an independent medical examination of the claimant at the respondents’ request. He found that Dr. Winkler opined that the claimant’s most recent rotator cuff tear was a new injury and that, but for the new injury, the claimant would not have again torn his rotator cuff. Order at 2-3, ¶ 6; Exhibit 7 at 52. In addition, the ALJ found that the claimant testified persuasively concerning his injuries and specifically credited the claimant’s testimony that he did not experience symptoms in his left shoulder between the time of the injections he underwent in March 2006, and his injury on May 19, 2006. Order at 2, ¶ 3; Tr. at 26, 28.
The evidence supporting the ALJ’s finding that the claimant sustained a new injury on May 19, 2006, which alone required additional benefits, is susceptible to different interpretations. However, it was within the ALJ’s discretion to interpret the evidence so long as his findings are supported by competent evidence. See Eastman Kodak Co. v. Industrial Commission, 725 P.2d 85, 87 (Colo.App. 1986), citing Eisnach v. Industrial Commission,
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633 P.2d 502 (Colo.App. 1981). In rejecting the claim that medical benefits should be apportioned, the ALJ found that there was “no persuasive medical or scientific evidence that established Claimant’s need for medical treatment was caused by his prior industrial injury or a presumptive non-industrial condition.” Order at 5, ¶ e. He found that, conversely, the new compensable injury caused a need for medical treatment with no “contribution from prior injury or condition. . . .” Order at 5, ¶ e. We agree with the ALJ that where a need for medical treatment is caused by the compensable injury without any contribution from other factors, apportionment is not compelled. E.g., Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004).
The burden here to show the propriety and extent of any apportionment was on the respondents. Cf. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999). Ultimately, the ALJ weighed the evidence and was unpersuaded that they carried that burden. The ALJ is vested with the broadest discretion in assessing the weight and sufficiency of the evidence, Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985), and we are unable to state that the record in this case compels the conclusion that the ALJ was required to apportion liability for benefits. The ALJ’s findings in that regard are supported by the record and he applied the correct legal standards. We therefore decline to disturb his order.
IT IS THEREFORE ORDERED that the ALJ=s order dated October 18, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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Arturo Ramirez, 1505 Main Street, Grand Junction, CO 81501
Garfield’s Off Broadway, 2148 Broadway, Grand Junction, CO 81501
Truck Insurance Exchange, c/o Farmers Insurance, Chad B. Saunders, P.O. Box 372660, Denver, CO 80237
Withers, Seidman, Rice Mueller, P.C., David B. Mueller, Esq., 101 South Third Street, Suite 265, Grand Junction, CO 81502 (For Claimant)
Ritsema Lyon, Michael A. Perales, Esq., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondents)
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