W.C. No. 4-237-910Industrial Claim Appeals Office.
August 22, 1996
FINAL ORDER
The respondents filed a petition for review of an order of Administrative Law Judge Gandy (ALJ). We affirm the ALJ’s award of temporary disability benefits, and dismiss without prejudice the respondents’ request for review of the ALJ’s order concerning medical benefits.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant became employed by Anheuser-Busch, Inc. (Anheuser) in 1988. In 1994 the claimant developed swelling behind his left knee which subsequently was diagnosed as a recurring popliteal cyst, otherwise known as “Baker’s cyst.”
In the course of treatment the claimant was examined by Dr. Belleville. At the time of his examination, the claimant weighed approximately 205 pounds. Dr. Belleville opined that ninety percent of the claimant’s left knee problem is due to a pre-existing non-occupational disorder attributable to either “excessive weight” or “abnormal weight bearing” which caused “stress on the cartilage structures.” The claimant was also examined by Dr. Nelson who opined that the claimant’s condition was the result of a “lifelong involvement in sports” which was aggravated by his employment.
The claimant testified that he was in excellent health until 1994, and denied any pre-existing knee problems. (Tr. pp. 4-5, 24). The claimant also stated that prior to 1994 he weighed 190 to 195 pounds, and that his weight did not increase to 205 pounds until after surgery for the Baker’s cyst. (Tr. p. 26).
In view of this evidence, and the fact that the claimant is almost six feet tall, the ALJ was not persuaded by Dr. Belleville’s opinion that the claimant’s knee problems were caused by his weight. Rather, the ALJ determined that Dr. Belleville’s medical conclusions were based upon a very brief examination of the claimant, and that Dr. Belleville failed to consider the fact that the claimant developed knee problems when his weight was significantly less than 205 pounds, the fact that the claimant’s employment involved heavy lifting, and the 1988 pre-employment physical examination which indicated that the claimant had no health problems and particularly no abnormalities in the extremities before he began working for Anheuser.
Concerning Dr. Nelson’s opinions, the ALJ found that Dr. Nelson failed to include any specific history which would support his opinion that the claimant’s injury was the result of a “lifelong involvement in sports.” To the contrary, the ALJ found the claimant’s testimony credible and determined that the claimant’s sports activities were not “extraordinary.”
Based upon these findings, the ALJ determined that the evidence was insufficient to establish that the claimant’s knee injury was the result of a pre-existing condition or a non-occupational cause. Consequently, the ALJ concluded that the claimant’s left knee problems are solely and directly a result of the conditions under which the claimant performed his work at Anheuser.
I.
On review, the respondents assert that there is no medical evidence that the claimant’s condition is entirely caused by his work. Consequently, the respondents contend that the ALJ erred in failing to apportion at least part of the claimant’s condition to non-occupational factors in accordance with Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). We perceive no error.
Anderson v. Brinkhoff, supra, holds that where an occupational exposure is not a pre-condition to the development of a disease, the claimant suffers an occupational disease only to the extent that the occupational exposure contributed to the claimant’s disability. Once the claimant establishes that the conditions of his employment have contributed to his disease or the aggravation thereof by causing disability, the burden shifts to the respondents to establish that non-occupational factors contributed to the disease. Cowin Co., v. Medina, 860 P.2d 535 (Colo.App. 1992).
The question of whether the respondents sustained their burden of proof is a question of fact for resolution by the ALJ Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
The ALJ is not restricted to medical evidence in determining the cause of the claimant’s condition. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical evidence is presented, it is the ALJ’s province to assess the weight and credibility of such evidence, and even uncontroverted medical opinions are not binding. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Rather, the ALJ is free to credit all, part, or none of an expert’s opinion concerning the cause of an injury. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Thus, it follows that even if there is no medical evidence that the claimant’s injury was solely caused by his employment, the ALJ was not compelled to apportion liability to other causes.
Furthermore, this record does not contain hard, certain evidence rebutting the claimant’s testimony concerning the cause of his left knee problems. Therefore, we may not disturb the ALJ’s decision to credit the claimant’s testimony concerning the absence of non-industrial causes of his injury. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).
Moreover, there is substantial evidence in the claimant’s testimony and the medical evidence the ALJ found persuasive to support the ALJ’s findings of fact. Consequently, we must uphold the ALJ’s determination that the respondents failed to sustain their burden of proof for apportionment. The respondents’ remaining arguments do not alter our conclusion.
II.
The respondents further contend that the ALJ erroneously ordered them to pay medical expenses incurred by the claimant prior to the date the claimant reported the injury to Anheuser. However, we conclude that this portion of the ALJ’s order is not currently subject to review.
Under § 8-43-301(2), C.R.S. (1995 Cum. Supp.), a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Furthermore, orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); C F I Steel Corp. v. Industrial Commission, 650 P.2d 1332
(Colo.App. 1982).
Here, the ALJ did not expressly order the respondents to pay for any specific medical expenses. Rather, the ALJ entered a general award of “medical benefits,” and reserved any issues not resolved by the order for future determination. Further, he directed the parties to set the matter for another hearing if there was a dispute concerning liability for a particular medical expense. (Tr. p. 51); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings); see also Summary Order dated February 14, 1996. Consequently, we conclude that the ALJ has not resolved the specific issue raised by the respondents, and therefore, it is not subject to our review at this time.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 7, 1996, is affirmed.
IT IS FURTHER ORDERED that the respondents’ petition for review of the ALJ’s award of medical benefits is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date this Order is mailed,pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed August 22, 1996 to the following parties:
James M. Schibler, 1606 Silvergate Rd., Ft. Collins, CO 80526
John Buck, Anheuser Busch, Inc., P.O. Box 20000, Ft. Collins, CO 80524
Cecilia M. Hust, CIGNA, P.O. Box 2941, Englewood, CO 80110-0141
Jan A. Larsen, Esq., P.O. Box 270008, Ft. Collins, CO 80527-0008 (For the Claimant)
Lynn P. Lyon, Esq., 999 — 18th St., #3100, Denver, CO 80202 (For the Respondents)
BY: _______________________