W.C. No. 4-494-275Industrial Claim Appeals Office.
March 5, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge of Harr (ALJ) which denied and dismissed the claim for workers’ compensation based on an alleged occupational disease. The claimant argues the record lacks substantial evidence to support the ALJ’s finding that the claimant failed to prove her condition was caused by the conditions of the employment. The claimant also argues the ALJ misapplied the burden of proof concerning apportionment to non-occupational hazards. We affirm.
The claimant was employed as a head clerk in the employer’s supermarket. In this capacity the claimant was required to perform various activities including checking groceries, stacking groceries, and counting money. In approximately January 1999 the claimant developed cysts on two fingers of her right hand as well as pain in her right wrist. An examining physician noted a possible “overuse injury” and recommended the claimant wear a splint while working. The examining physician also referred the claimant for evaluation by an orthopedic surgeon.
The claimant admitted that before developing the upper extremity symptoms she engaged in extensive bicycle riding. The claimant rode her bicycle, which was equipped with “drop down” handlebars, between 100 and 300 miles per week. However, the claimant testified she did not experience any upper extremity symptoms associated with riding the bicycle.
In March 1999, the claimant underwent surgery for removal of the cysts and a carpal tunnel release on the right wrist. Later the claimant was diagnosed with reflex sympathetic dystrophy. The claimant did not return to work after March 1999.
In April 2001, the claimant filed an application for hearing alleging that her upper extremity conditions were caused by the repetitive work activities which she performed as a head clerk. However, the ALJ found the claimant failed to prove that it is more probably true than not the claimant’s upper extremity problems were caused by the duties of her employment, or that the symptoms did not come from a hazard to which the claimant was equally exposed outside of the employment. In support of this determination the ALJ found there was no “persuasive medical evidence” that the claimant’s condition was caused by her employment. However, the ALJ found there was medical evidence that, post-operatively, the claimant experienced increased symptoms when riding her bicycle. Further, the ALJ noted the orthopedic surgeon failed to indicate the claimant’s condition was caused by her employment despite numerous opportunities to do so. The ALJ also found the claimant “dissembled” when she testified that riding the bicycle did not cause upper extremity symptoms. Finally, the ALJ found the claimant testified inconsistently concerning when she first reported a work-related injury to the employer, and the ALJ credited the testimony of the employer’s witnesses that the injury was not reported for more than two years.
On review, the claimant argues the “overwhelming evidence” establishes that her upper extremity problems “arose from her work in the form of an occupational disease.” In support, the claimant cites her own testimony that she experienced symptoms while performing work activities, but not while riding the bicycle. The claimant also argues there is no medical evidence that bicycle riding affected her prior to developing the symptoms, and that the examining physician connected the symptoms to the claimant’s employment. We reject these arguments.
When seeking to prove an occupational disease, the claimant “must establish the existence of the disease and that it was directly and proximately caused by the claimant’s employment or working conditions.” Section 8-40-201(14), C.R.S. 2001; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant has proven causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because the issue 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. 2001. 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 Claims Office, supra. In this regard, we note the ALJ is not required to credit the testimony of any witness, even if the testimony is unrefuted and uncontroverted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Further, where the record contains medical evidence and opinions relevant to the issue of causation, it is for the ALJ to assess the relative weight and credibility of such evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s argument notwithstanding, the record did not compel the ALJ to find the claimant proved that her upper extremity problems were caused by repetitive activity in her employment. First, although the ALJ recognized the examining physician diagnosed a possible overuse syndrome related to the employment, the ALJ did not find such evidence persuasive. To the contrary, the ALJ was persuaded by the failure of the orthopedic surgeon to attribute the claimant’s condition to the employment, as well as medical evidence indicating that the claimant’s condition was aggravated by riding a bicycle. Although the documented aggravation occurred after the claimant’s surgery, the ALJ expressly discredited the claimant’s testimony that riding a bicycle did not cause symptoms before the surgery. It was the ALJ’s prerogative to discredit the claimant’s testimony, particularly in the presence of evidence tending to indicate that riding a bicycle affected the claimant’s upper extremities after surgery. Moreover, the record supports the ALJ’s finding that the claimant failed to report the alleged work-related injury for more than two years after it occurred, and that, contrary to the claimant’s testimony, the employer did not criticize employees who were on light duty as a result of work-related injuries.
The claimant also alleges the ALJ misapplied the burden of proof by stating the claimant failed to prove her condition did not come from a hazard to which she was equally exposed outside of the employment. However, in our view, any such error was harmless.
A claimant has the burden, in the first instance, to establish the existence of a disease caused by the conditions of employment. If the claimant succeeds in establishing a disease caused in part by the conditions of employment, the burden shifts to the respondents to establish the degree to which non-industrial factors contributed. See Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992); Chasteen v. King Soopers, Inc., W.C. No. 4-445-608 (July 11, 2001).
Here, the ALJ found as a matter of fact that the claimant failed to prove a disease caused or aggravated, at least in part, by the conditions of the claimant’s employment. In these circumstances, the ALJ did not need to reach the question of apportionment between industrial and non-industrial causes. Consequently, even if the ALJ misstated the burden of proof with respect to the issue of apportionment, the error was harmless because the claimant failed to make the threshold showing of a work-related disease.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 2001, 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. 2001. 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 March 5, 2002 to the following parties:
Theresa Scannell, 14577 Hayesmount Rd., Brighton, CO 80603
King Soopers, Inc., 3600 Table Mesa Dr., Boulder, CO 80305-5823
Landon Wallis, RSKCo, P. O. Box 5567, Denver, CO 80217
Regina M. Walsh Adams, Esq., 1011 37th Ave. Ct., #201, Greeley, CO 80634 (For Claimant)
Jacquelyn L. Brumfield, Esq., P. O. Box 539, Denver, CO 80201-0539 (For Respondent)
BY: A. Pendroy