W.C. No. 4-506-772Industrial Claim Appeals Office.
December 4, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged a left hip injury on December 6, 2000, from lifting a pallet of milk. He immediately reported the injury but did not seek treatment until December 28, 2000.
The respondent referred the claimant to Dr. Reichardt who diagnosed the claimant as suffering pre-existing avascular necrosis of the left hip. Dr. Reichardt testified that avascular necrosis causes the death of bone tissue due to a loss of blood supply. (Tr. p. 46). Dr. Reichardt opined that avascular necrosis is neither caused nor aggravated by lifting. (Tr. pp. 49, 54). Instead, he opined that the claimant’s pain and need for left hip surgery is independent of the lifting incident on December 6 and that the pre-existing condition could have become symptomatic with any activity. (Tr. pp. 50, 54).
Crediting the testimony of Dr. Reichardt, the ALJ found the claimant failed to prove a compensable injury and, therefore, denied the claim. The claimant timely appealed.
The claimant’s Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. The claimant also contends the ALJ’s order was premature and erroneously issued without consideration of the claimant’s post-hearing position statement where the claimant argued he suffered a compensable aggravation of his pre-existing hip condition which caused the pain that prompted him to seek treatment, and lead to the imposition of medical restrictions.
A notice of briefing schedule was issued on August 26, 2002, which gave the claimant 20 days to file a brief in support of the Petition to Review. On November 8 the record was “Green sheeted” to us for review. The Green sheet contains a notation that no briefs were filed. Accordingly our acknowledgment letter advised the parties that the record contained no briefs and afforded the parties 10 days to submit a copy of any timely filed brief. We have not received any briefs. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
To prove a compensable injury the claimant was required to prove that his condition was proximately caused an injury arising “out of and in the course of” his employment. Section 8-41-301(1)(c), C.R.S. 2002; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). A compensable injury may result from the aggravation of a pre- existing condition if an industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
Section 8-43-301(8), precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
The determination of whether the claimant’s disability and need for treatment was caused by a new injury or a pre-existing condition is a question of fact for resolution by the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2002. Under this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, and his 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). Furthermore, the ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that the ALJ would as a matter of law err in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
We have reviewed the record and the ALJ’s findings of fact and have no difficulty ascertaining the basis of the ALJ’s order. Consequently, the ALJ’s findings are sufficient to permit appellate review. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The medical evidence was conflicting. The ALJ resolved the conflicts by crediting the opinions of Dr. Reichardt and rejecting contrary medical evidence. See Regional Transportation District v. Jackson, 805 P.2d 1190
(Colo.App. 1991) (ALJ’s credibility determinations adequately informs reviewing court how ALJ resolved conflicts in the evidence); cf. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ is free to credit one medical opinion to the exclusion of a contrary medical opinion).
Dr. Reichardt’s diagnosis was corroborated by Dr. Mayer and Dr. Hajek. Thus, we cannot say the ALJ erred in crediting Dr. Reichardts’ testimony. See Halliburton Services v. Miller, supra. Moreover, there is substantial evidence in Dr. Reichardt’s testimony to support the ALJ’s finding that the claimant failed to prove the requisite causal connection between the need for treatment and the December 6 incident. Consequently, the ALJ’s finding is binding and it is immaterial the record contains some medical evidence which, if credited, might support a contrary determination. See Campbell v. IBM Corp., 867 P.2d 77
(Colo.App. 1993).
Finally, the ALJ’s order expressly acknowledges the filing of the parties’ post-hearing position statements. Under these circumstances, we are not persuaded by the claimant’s bald assertion that the order was issued without consideration of his post-hearing position statement. See Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985) (ALJ entitled to presumption of integrity, honesty, and impartiality); cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (a presumption exists that ALJ considered and gave due weight to relevant statutory factors in awarding permanent disability).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 4, 2002 to the followingparties:
Matt Romero, 429 28th Ave., Greeley, CO 80634
K-Mart #4934, HR Manager, 2900 29th St., Greeley, CO 80634
K-Mart Corporation, 3100 W. Big Beaver Rd., Troy, MI 48084-3164
McMillan Claim Service, 2785 N. Speer Blvd., Denver, CO 80211
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Brett Parnes, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondent)
BY: A. Hurtado