W.C. No. 4-284-516Industrial Claim Appeals Office.
May 12, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant sustained a compensable injury. We affirm.
The claimant testified that she sustained an injury to her left shoulder on January 18, 1996, while mopping a floor. She stated that she experienced numbness in her arm together with a sharp pain she had never felt before.
The claimant was treated by Dr. McCurry, who diagnosed a left brachial plexus stretch injury and a left pectoralis muscle strain. Initially, Dr. McCurry indicated that the injury was work-related. However, in his deposition, he opined that the claimant’s upper extremity symptoms were probably caused by a January 4, 1995 automobile accident. The basis of this opinion was that the medical records for treatment of the automobile injury indicated that the claimant occasionally experienced numbness in her hands.
However, Dr. Parker, the physician who treated the claimant for the automobile accident, opined that the claimant’s upper extremity symptoms were not caused by the automobile accident. Dr. Parker examined the claimant on January 16, 1996, two days before the reported industrial injury, and noted no difficulties with the claimant’s upper extremities. Moreover, in a report dated June 14, 1996, Dr. Parker stated the following:
“I most strongly disagree with [Dr. McCurry’s] clairvoyance/medical opinion and stand by my previous diagnoses as well as my opinion that her left brachial plexus and pectoral injuries were not caused by her MVA.”
Relying on the opinions of Dr. Parker and the claimant’s testimony, the ALJ found that the claimant sustained a compensable injury on January 18, 1996. Consequently, she awarded temporary disability benefits.
I.
On review, the respondents contend that the ALJ’s finding that the claimant sustained a compensable injury is not supported by substantial evidence or the law. In particular, the respondents assert that the ALJ erred in relying on Dr. Parker’s testimony because he “overlooked” evidence that the claimant had neurological symptoms prior to January 18, 1996. Moreover, the respondents assert that the ALJ disregarded the “fully informed” opinion of Dr. McCurry that the claimant’s symptoms were probably caused by the 1995 automobile accident. We are not persuaded.
The question of whether the upper extremity symptoms were caused the automobile accident or the industrial injury was an issue 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 order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997).
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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Where, as here, medical evidence of causation is presented, it is for the ALJ to assess its weight and credibility Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the fact that a physician may have received an incomplete medical history affects the weight to be accorded his medical opinion, not its admissibility. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
The respondents’ argument notwithstanding, the ALJ did not err in relying on Dr. Parker’s opinion concerning causation. To the contrary, the ALJ was free to infer that Dr. Parker did not “overlook” the neurological symptoms which the claimant experienced prior to January 1996. Instead, the ALJ could conclude that because Dr. Parker found that these symptoms were absent on January 16, he believed they were not significant to the causation issue. As the claimant points out, it is also plausible to infer that Dr. Parker was fully aware of these symptoms since the physical therapy reports were sent to him. Moreover, Dr. Parker appears to have been aware of Dr. McCurry’s conflicting opinion, but simply disagreed with it.
Conversely, the ALJ was not required to credit the opinions of Dr. McCurry. The fact that Dr. McCurry changed his opinion on causation was itself a basis for discrediting Dr. McCurry’s testimony. Moreover, we are in no position to interfere with the ALJ’s resolution of the conflict between two qualified medical experts.
The respondents have also argued that the claimant’s testimony is incredible because there was evidence that she made misrepresentations on her application for employment, and because a medical expert opined that she has an anti-social personality. However, the claimant’s testimony was corroborated by Dr. Parker, and we cannot say that the ALJ erred as a matter of law in relying on claimant’s testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (evidence is not incredible as a matter of law unless rebutted by hard, certain evidence directly contrary to the testimony).
II.
The respondents next contend that the ALJ erred because she found that the claimant sustained an accidental injury rather than an occupational disease. The respondents argue that this distinction is significant since Dr. McCurry opined that the claimant was “equally exposed” to the hazards of her disease while outside of the employment. We disagree.
An accidental injury is traceable to a particular time, place and cause. Conversely, an occupational disease is attributable to the circumstances under which the work is performed, and can be seen to arise as a natural incident of the employment. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993); § 8-40-201(14), C.R.S. (1996 Cum. Supp.).
Here, the ALJ credited the claimant’s testimony that she felt a sudden onset of symptoms while using a heavy mop on January 18, 1996. The symptoms were different than anything the claimant had experienced before. (Tr. pp. 12-13). Considering that the claimant was diagnosed with a “stretch” and “strain” type of injury, the ALJ plausibly concluded that the claimant sustained an accidental injury traceable to a particular time, place and cause.
It is true that the record contains some evidence, including the testimony of Dr. McCurry, which might support contrary findings and conclusions. However, because substantial evidence supports the ALJ’s finding, we are not free to substitute our judgment for hers concerning this factual issue. Metro Moving Storage Co. v. Gussert, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 9, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Orderis 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 AppealsOffice and all other parties, within twenty (20) days after the date theOrder was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996Cum. Supp.).
Copies of this decision were mailed May 12, 1997 to the following parties:
Donna Rauh, P.O. Box 206, Penrose, CO 81240-0206
Saint Thomas More Hospital, Inc., 1338 Phay Ave., Canon City, CO 81212-2302
Sharon Thompson, Support Services, Inc., P.O. Box 22438, Denver, CO 80222
Gordon J. Williams, Esq., 559 E. Pikes Peak, Ste. 203, Colorado Springs, CO 80903 (For the Claimant)
Clyde E. Hook, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondent)
By: ____________________________