W.C. No. 4-649-298.Industrial Claim Appeals Office.
May 15, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated December 11, 2006, that determined the respondents were not liable for the costs of a total knee replacement surgery. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a compensable injury on April 24, 2005, while playing basketball in the course and scope of his employment. Dr. Hess, an authorized treating physician, recommended surgery for a total knee replacement. The record contained various expert medical opinions on the issue of the causal connection between the industrial accident and the need for the surgery. The ALJ examined the various opinions and found the opinion of Dr. Gersoff was more credible and more persuasive than the opinions offered by other physicians. Dr. Gersoff testified that the claimant’s arthritis pre-existed the compensable injury and that it was just a matter of time before symptoms developed. Dr. Gersoff testified that the proposed surgery was needed because of the arthritic damages in the claimant’s knee. Dr. Gersoff testified that the compensable injury did cause the discovery of the underlying disease to happen sooner, but did not accelerate the need for the surgery. The ALJ found that the claimant’s arthritis was not caused or aggravated by the compensable injury. The ALJ further found that the compensable injury did not accelerate the need for the recommended surgery. The ALJ therefore found the claimant had failed to establish by a preponderance of the conflicting evidence that the compensable injury on April 24, 2005, caused or aggravated his arthritis, or accelerated the need for the recommended
Page 2
total knee replacement surgery. The ALJ concluded that the respondents were not liable for the costs of the proposed total knee replacement surgery.
On appeal the claimant first argues that the ALJ erred as a matter of fact because his Findings of Fact, Conclusions of Law, and Order at 3 ¶ 5 are not supported by substantial evidence. The claimant correctly notes that the ALJ found the claimant was examined by Dr. Gersoff on November 13, 2006 when in fact Dr. Gersoff testified he examined the clamant on August 10, 2006. Gersoff Depo. at 4. The deposition of Dr. Gersoff was taken on the November 13, 2006 and it appears the ALJ switched the dates of the examination and the deposition. However, the claimant makes no argument that the error had any substantive affect on the order nor does it affirmatively appear that the party complaining was damaged thereby. In our opinion this was harmless error which should be disregarded since it was not prejudicial. Section 8-43-310, C.R.S. 2006.
A preexisting condition does not disqualify a claimant from receiving workers’ compensation benefits. Rather, where the industrial injury aggravates, accelerates, or combines with a preexisting disease or infirmity to produce the need for treatment, the treatment is a compensable consequence of the industrial injury. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Resolution of that issue is one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251
(Colo.App. 1999).
The claimant concedes that Dr. Gersoff testified that the proposed surgery was needed because of the arthritic damage in the claimant’s knee. However, the claimant argues that other sections of Dr. Gersoff’s testimony can be interpreted as evidence that the surgery was needed because of the injury. In particular the claimant notes portions of Dr. Gersoff’s response to a question of what caused the osteoarthritis to develop in the claimant. Dr. Gersoff stated:
Well, I think there’s a couple of possibilities here. Probably the biggest underlying factor is he probably just had bad genetics. He probably was born with not a very good joint cartilage and not very good joints. And historically, on top of that, if there is let’s say any type of injury, either of a significance that requires surgery or may not even be seen, but if people are fairly active and doing things and if they get little bangs and so forth, it
Page 3
really quickly tilts the scale in the direction of cause going down that arthritic, let’s say curve.
Gersoff Depo. at 5.
In our view a plausible inference to be drawn from this statement in its totality is that the Dr Gersoff was of the opinion that the cause of the osteoarthritis was not the industrial accident. At any rate even if we assume, as suggested by the claimant, that this is evidence that the claimant’s pre-existing osteoarthritis was aggravated by his work-related injury, which accelerated the need for the total knee replacement, it does not compel a decision by the ALJ that the respondents are liable for the costs of the surgery. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Here, Dr. Gersoff testified that the compensable injury did cause the discovery of the underlying disease to happen sooner, but did not accelerate the need for the surgery. Gersoff Depo. at 15. We perceive no basis on which to interfere with the ALJ’s reliance on Dr. Gersoff’s opinion and finding that the compensable injury did not cause or aggravated his arthritis or accelerate the need for the recommended surgery. The claimant’s additional argument involving the testimony of Dr. Gersoff’s does not alter our conclusion.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 11, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________ John D. Baird
__________________________ Thomas Schrant
Page 4
Orlando Robinson, Denver, CO, Youth Track, Denver, CO, Specialty Risk Services, Laurie Iverson, Park City, UT, Youth Track, Inc. Shellie Murphy, Littleton, CO, Janice Greening, Esq., Englewood, CO, (For Claimant).
Clifton, Mueller Bovarnick, P.C., Richard A. Bovarnick, Esq., Denver, CO, (For Respondents).
Page 1