W.C. No. 4-524-308Industrial Claim Appeals Office.
December 11, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant sustained a compensable injury and awarded temporary disability and medical benefits. We affirm.
On April 17, 2002, the ALJ entered an order finding the claimant sustained a compensable injury in the form of two herniated discs of the lumbar spine. The ALJ also found that when the claimant reported the injury to the employer in May 2001, the employer failed to refer the claimant to a physician willing to treat the claimant. Consequently, the ALJ concluded the right to select the treating physician passed to the claimant. Finally, the ALJ found the claimant was entitled to temporary total disability benefits commencing October 1, 2001, when he was laid off and was no longer able to perform the duties of his regular employment.
The respondents filed a petition to review the order. The respondents argue the evidence does not support the findings of fact on the issues of causation and disability. The respondents also assert the ALJ erred in determining the claimant was authorized to select the treating physician. The respondents did not file a brief in support of the petition to review.
The claimant had the burden to prove, by a preponderance of the evidence, that his disc injuries were caused by 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). The question of whether the claimant met the burden of proof is one of fact for the ALJ. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Because proof of causation is 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. 2002. This standard of review requires that we defer to the ALJ’s determinations concerning the weight and credibility of the evidence, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, __P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). We note that expert medical testimony is not necessary to prove causation. However, to the extent such evidence is presented, it is for the ALJ to determine its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the claimant testified that he experienced back pain after performing strenuous concrete work, and that continuing to work aggravated his pain. The claimant’s testimony was corroborated by Dr. Jenkins who noted the claimant’s pain grew worse with work. Under these circumstances, substantial evidence supports the ALJ’s inference that the claimant’s injuries were caused and aggravated by his employment. Further, the ALJ correctly applied the burden of proof even though he acknowledged the case presents a “close call.”
Neither did the ALJ err in determining the claimant became temporarily disabled commencing October 1, 2001, when he was laid off from work. The ALJ found, based on the claimant’s testimony, that at the time of the termination the claimant was no longer able to perform the duties of his regular employment. This evidence is sufficient to support the award of temporary disability benefits. See Culver v. Ace Electric, 971 P.2d 641
(Colo. 1999); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June, 11, 1999). We note the respondents did not argue the claimant was responsible for the loss of employment.
Finally, the evidence supports the ALJ’s finding that the right to select the treating physician passed to the claimant. Although the evidence was conflicting, the ALJ implicitly credited the claimant’s testimony that the company doctor would not treat him without a statement from the employer that the injury was work-related. However, when notified of this requirement, the employer failed to provide the statement or refer the claimant to another physician. (Tr. Pp. 12-13). This evidence establishes the employer failed to provide a physician willing to treat the claimant, and the right of selection passed. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); Davis v. Interstate Brand Corp., W.C. No. 4-291-678 (May 17, 1999), aff’d., Interstate Brands Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1020, December 16, 1999) (not selected for publication).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 17, 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 11, 2002 to the following parties:
Rodrigo Sanchez, 667 S. Quitman St., Denver, CO 80219
Asphalt Specialties Company, 7321 E. 88th Ave., Henderson, CO 80640-8137
Marc Gallegos, TriStar Risk Management, P. O. Box 5007, Denver, CO 80217-5007
Jordan S. Levine, Esq., 1490 Lafayette St., #203, Denver, CO 80218 (For Claimant)
Stephen R. Higgins, Esq., 950 17th St., 21st Floor, Denver, CO 80202 (For Respondents)
By: A. Hurtado