W.C. No. 4-524-884.Industrial Claim Appeals Office.
January 6, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ awarded medical benefits for back surgery. The respondents contend the record does not support the ALJ’s finding of a causal connection between the industrial injury and the need for surgery. We disagree and therefore, affirm.
Insofar as pertinent, the record reveals the claimant suffered compensable injuries in November 2001 when he tripped and fell on an airport jetway. On November 13, 2001, Dr. Bowman diagnosed “low back pain/left hip pain/left sciatica and cervicothoracic strain status post-fall.” Dr. Bowman also noted his previous treatment of the claimant for thoracolumbar myofascial pain. Following an MRI and lumbar myelogram, Dr. Sillix diagnosed a herniated disk and recommended a lumbar laminotomy.
Dr. Bowman acknowledged that he could not be certain that the claimant’s herniated disk did not predate the industrial accident. However, based on the progression of symptoms after the industrial accident which did not respond to non-invasive treatment, Dr. Bowman opined it was medically probable that the industrial accident caused the herniated disk. (Bowman depo. p. 48). Dr. Sillix agreed with Dr. Bowman that the November 11 accident was the proximate cause of the claimant’s low back complaints and symptoms of radiculopathy.
Crediting the opinions of Dr. Bowman and Dr. Sillix, the ALJ found the laminectomy recommended by Dr. Sillix is reasonable and necessary to treat the industrial injury. In so doing, the ALJ rejected the respondents’ contention that the claimant’s herniated disk was caused by a non-work related accident on November 5, 2001. Instead, the ALJ credited the claimant’s testimony that he treated with Dr. Bowman on November 5, 2001 for a minor back strain which resolved before the industrial accident. Further, the ALJ found that Dr. Bowman dismissed the November 5 accident as the cause for the claimant’s herniated disk.
On review, the respondents contend the ALJ erroneously relied on the claimant’s testimony and the opinions of Dr. Bowman. We perceive no reversible error.
Section 8-42-101(1), C.R.S. 2003, requires the employer to provide medical benefits that are reasonable and necessary to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). It is the claimant’s burden to prove a causal connection between the industrial injury and the need for specific medical treatment. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Whether the claimant has met his burden of proof is a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence in the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999) (existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion). Under the substantial evidence standard, we must review the evidence in the light most favorable to the prevailing party and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ’s credibility determinations unless there is hard, certain evidence directly contrary to the testimony the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997).
Inconsistencies, contradictory evidence, and incomplete testimony are not uncommon to adversary hearings in workers’ compensation claims. It is the ALJ’s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication). In these circumstances, the ALJ is free to credit only part of a witness’ testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Here, the record contains highly conflicting expert opinions on the cause of the claimant’s lumbar problems. However, within his sole prerogative, the ALJ gave greater weight to the opinions of Dr. Bowman than the respondents’ independent medical examiners (IME). Because Dr. Bowman had numerous opportunities before and after the industrial accident to evaluate the claimant’s condition, we cannot say the ALJ abused his discretion.
Further, Dr. Sillix agreed with Dr. Bowman on the cause of the claimant’s need for surgery. Under these circumstances, we cannot say Dr. Bowman’s opinions were overwhelmingly rebutted by hard, certain medical evidence to the contrary. Cf. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961) (substantial evidence not determined by number of witnesses presented by each party).
We note that the ALJ was free to consider whether Dr. Bowman’s opinions were based upon an incomplete and inaccurate history of the claimant’s industrial accident in assessing the probative weight of Dr. Bowman’s opinions. However, any such evidence did not preclude the ALJ from crediting Dr. Bowman’s opinions. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
We reject the respondents’ assertion that the claimant’s testimony about the mechanism of the industrial injury is inconsistent with the Dr. Bowman’s medical reports. The claimant testified that the industrial accident occurred when he tripped on an airport jetway and fell backwards on his “hip and buttock area.” Specifically, the claimant stated he fell on his “left buttock, left leg area,” and during a demonstration pointed to the lower left buttock area adjacent to his left hip as the body part upon which he fell. (Tr. p. 11).
Dr. Bowman’s November 13 report states the claimant fell down “on his left hip” and the claimant “fell directly on his buttock.” However, Dr. Bowman testified that many patients call a variety of things the “hip.” Further, he opined that the claimant could suffer injuries involving both the left hip and buttock from the twisting fall he experienced on November 11. (Bowman depo. p. 33). Under these circumstances, the ALJ reasonably inferred that the claimant injured his low back when he fell on his buttocks in a twisting fall. (Finding of Fact 1).
Next, the respondents contest the ALJ’s Finding of Fact 8 in which the ALJ determined the claimant “testified credibly that the November 5, 2001 medical visit was for a minor strain to his maid-back, which had resolved by November 13, 2001 and that he had not missed any work as a result of that incident.” We perceive no basis on which to disturb the ALJ’s finding.
The claimant denied he sought treatment from Dr. Bowman on November 5 for low back pain resulting from an incident at home when he lifted his son out of a bathtub. Instead, the claimant testified he sought treatment for abdominal pain. (Tr. p. 19). However, the claimant admitted he reported some back pain to Dr. Bowman, which he attributed to sore muscles between his shoulder blades caused by recent work activities. The claimant also stated that the back pain sufficiently resolved to allow him to return to work and perform 3 shifts before the industrial injury. (Tr. pp. 16, 17, 20, 21).
Admittedly, the claimant’s testimony is inconsistent with Dr. Bowman’s clinic note from November 5, which indicates that the claimant reported severe low back pain radiating into his lower extremity. However, the ALJ was free to resolve the conflict in favor of the claimant and credit the claimant’s testimony that he sustained a minor strain to his mid-back which resolved prior to the industrial injury. See Colorado Springs Motors, Ltd. v. Industrial Commission, supra.
The claimant further testified that immediately following the industrial accident, he experienced a different and substantially more severe pain than existed before November 11. (Tr. p. 22). The claimant’s testimony is supported by the opinions of Dr. Bowman and Dr. Sillix. Furthermore, Dr. Jacobs admitted the industrial accident could have caused the claimant’s low back injury. (Tr. p. 29). Consequently, we cannot say the claimant’s testimony concerning the November 11 injury is so overwhelmingly rebutted that the ALJ erred in crediting it.
The respondents’ arguments essentially request that we reweigh the evidence on review, but we have no authority to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Accordingly, we reject the respondents’ arguments that would require us to substitute our judgment for that of the ALJ. Finally, the ALJ’s findings support the award of medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 30, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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 order were mailed to the parties at the addressesshown below on January 6, 2004 by A. Hurtado
Brandon Sarti, 3219 Nolene Court, Clifton, CO 81520
Mesa Airlines, 410 N. 44th St., #700, Phoenix, AZ 85008
Lumberman’s Mutual Insurance Co., c/o Pam Lowrance, Frank Gates USA, P. O. Box 9300, Albuquerque, NM 87119-9300
David B. Mueller, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Marsha A. Kitch, Esq., 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)