W.C. No. 3-066-133Industrial Claim Appeals Office.
July 16, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied and dismissed his petition to reopen based on worsened condition. We affirm.
The claimant sustained a compensable injury when he dislocated his patella on February 8, 1990. The claimant received “conservative treatment” from Dr. Purnell. This treatment included an MRI which revealed “no evidence of free floating fragments” in the knee. On March 19, 1990, Dr. Purnell examined the claimant and was unable to “subluxate” or dislocate the claimant’s knee. Moreover, on April 18, 1990, Dr. Purnell pronounced the claimant at maximum medical improvement (MMI) with no permanent impairment. Dr. Purnell also released the claimant “to full activities.”
In March 1992, the claimant dislocated his knee for the second time while pushing a car out of the snow. This injury was non-industrial. The claimant was again examined by Dr. Purnell who noted that the claimant had not had problems with subluxation since 1990. An x-ray indicated “possibly a small loose body medial to the patella.” However, the claimant apparently did not pursue further treatment at this time.
The claimant suffered a third dislocation of the knee in June 1995 while playing recreational basketball. At this time, the claimant was treated by Dr. Paul who recommended surgical intervention. Dr. Paul issued a report opining that the need for surgery is causally related to the 1990 industrial injury because that injury triggered instability of the knee.
Based on Dr. Paul’s opinion, the claimant petitioned to reopen the claim for the 1990 industrial injury. However, the ALJ denied the petition finding that the need for surgery was caused by the March 1992 incident, and that the claimant failed to carry his burden of proof to establish a causal relationship between the 1990 injury and the need for surgery. In support of this conclusion, the ALJ cited the medical evidence that the claimant did not have “free floating fragments” in his knee after the 1990 injury, but there was evidence of a fragment after the 1992 injury. Moreover, the ALJ pointed out that Dr. Purnell was unable voluntarily to dislocate the claimant’s knee after the 1990 injury, and that the claimant was released to regular activities including skiing.
On review, the claimant contends that the record does not support the ALJ’s denial of the petition to reopen. The claimant argues that the ALJ should have adopted Dr. Paul’s “uncontroverted opinion” that the need for surgery is causally connected to the 1990 injury. In support of this proposition, the claimant argues that Dr. Purnell never stated his opinion concerning the cause of the dislocations in 1992 and 1995. Moreover, the claimant asserts that Dr. Paul is in a better position than Dr. Purnell to give an opinion concerning the cause of the 1992 and 1995 dislocations. We are not persuaded.
The claimant does not deny that he was required to prove that the 1990 industrial injury was the cause of his worsened condition. Certainly, the claimant could have carried his burden of proof by establishing that the 1990 injury left his knee in a weakened condition, and that the subsequent dislocations were proximate and natural results of the weakened condition Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622
(1970). Conversely, the claimant is not entitled to recovery if the 1992 and 1995 dislocations were the products of an efficient intervening cause. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934).
The question of whether the claimant proved the requisite causal relationship between the 1990 injury and the subsequent dislocations is one of fact for resolution by the ALJ. See City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997); F. R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). There is no requirement that causation be established by medical evidence, but to the extent such evidence is presented it is the sole prerogative of the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, an ALJ need not credit medical testimony even if it is “uncontroverted.” Cary v. Chevron, U.S.A., 867 P.2d 117 (Colo.App. 1993).
The claimant’s arguments notwithstanding, the record contains substantial evidence to support the ALJ’s order. The medical records and Dr. Purnell’s testimony reveal that the claimant did not have evidence of a fragment in his knee after the 1990 injury, but that the fragment was demonstrable after the 1992 injury. (See Purnell Depo. p. 8). A plausible inference to be drawn from this evidence is that the 1992 injury constituted an “intervening event” which was the proximate cause of the subsequent dislocation in 1995. This inference is buttressed by the evidence that Dr. Purnell was unable to dislocate the claimant’s knee in March 1990, and that he released the claimant without restrictions in April 1990.
In essence, the claimant asks us to reassess the evidence and place greater emphasis on the opinions of Dr. Paul. However, the mere fact that Dr. Paul’s opinion would support contrary findings and conclusions affords no basis for relief on appeal. Rather, we are obliged to defer to the ALJ’s findings concerning the medical evidence, and the plausible inferences which he drew from it. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview 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 the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed July 16, 1997 to the following parties:
Lane M. Simon, 675 Watch Hill Lane, Cincinnati, OH 45230
Kettle Corporation, P.O. Box 8030, Aspen, CO 81611
Larry Peluso, St. Paul Fire Marine Ins. Co., 500 S. Kraemer Blvd., Brea, CA 92621
Michael J. Barbo, Esq., 12250 E. Iliff Ave., Ste. 308, Aurora, CO 80014-1253, (For the Respondents).
Lance Isaac, Esq., 1655 Lafayette St., Ste. 104, Denver, CO 80218-1500, (For the Claimant).
By: ________________________________