W.C. Nos. 4-299-687, 4-329-471Industrial Claim Appeals Office.
November 20, 1998
FINAL ORDER
The claimant seeks review of an order issued by Administrative Law Judge Rumler (ALJ) which dismissed and denied these consolidated claims. The claimant contends that the ALJ erroneously determined that he failed to prove a compensable occupational disease during his employment for the respondent Public Service Company of Colorado (Public Service). We perceive no error, and therefore affirm the order.
The claimant was employed by Public Service from approximately 1974 to October 1994. In June 1996, the claimant filed a workers’ compensation claim, which alleged an occupational disease to his back with the onset of disability September 1, 1994. The claimant requested medical benefits for treatment commencing August 1995.
The ALJ found that the claimant suffers from degenerative disc disease and sciatic neuropathy. The ALJ further found that the degenerative disc disease has been medically documented since 1977, and that over the years the claimant has been treated for “flare-ups” of the underlying back condition. The ALJ determined that the claimant failed to prove a causal connection between the need for medical treatment in 1995 and his employment at Public Service, and therefore denied the claim.
The claimant contends that the medical evidence establishes that the degenerative changes in his back have worsened as a result of the hazardous exposure to heavy lifting during his employment with Public Service. In support, the claimant relies upon Dr. Ryan’s report dated February 25, 1997, wherein Dr. Ryan opines that “it is clear to me from talking with [the claimant] that his work with Public Service constituted an occupational exposure, and occupational disease.” The claimant contends that Dr. Ryan’s report is the only medical evidence concerning the cause of his back condition. Therefore, the claimant argues that the record does not support the ALJ’s finding that the claimant failed to prove a compensable injury during this employment with Public Service. We disagree.
Where an occupational exposure is nota precondition to the development of a disease, the claimant suffers an occupational disease only to the extent that the occupational exposure caused, aggravated, or accelerated, to some reasonable degree, the disability for which compensation is sought. Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). The claimant bears the burden to prove the requisite causal relationship, and whether he has sustained his burden of proof is a question of fact for resolution by the ALJ. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981).
We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard we are bound by the ALJ’s credibility determinations and her assessment of the weight and sufficiency of the lay and medical evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Furthermore, the ALJ is not bound by medical evidence even if uncontroverted. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
The claimant’s personal physician, Dr. Lebow, opined that the claimant’s back problems are the result of a “pathologic process” over 20 to 30 years, manifested by serious degeneration in L3-L4. (Lebow depo. pp. 26, 32). Dr. Lebow also testified there was no documentation in his record of the claimant’s back problems being related to his work at Public Service, and he never restricted the claimant from working. (Lebow depo. pp. 15, 17, 21).
The claimant testified that his back problems began in the early 1970’s, at which time his job required heavy lifting unloading trucks and railroad cars. (Tr. p. 30). He stated that had has had “pretty consistent” monthly back pain since that time, and that the onset of pain is not necessarily caused by a particular activity. (Tr. pp. 33, 34). The claimant also admitted that his back problems continued after 1986 when he became a supervisor and no longer did much heavy lifting. (Tr. pp. 31, 58).
The claimant did not request any treatment from Public Service between 1986 and 1994. (Tr. p. 51). In September 1994, the claimant sought treatment from Dr. Zimmer. The claimant stated that he sought treatment after a flare-up while working in his basement and sitting on a stool for a couple hours. (Tr. pp. 35-36). He also stated that his symptoms have been the same since September 1994, but worsen with activity and then return to baseline. (Tr. pp. 39, 42).
Based upon the testimony of the claimant and Dr. Lebow, the ALJ could reasonably infer that the claimant failed to establish by a preponderance of the evidence that the degenerative disc disease was caused, accelerated, or aggravated by his employment with Public Service. Moreover, this finding supports the order denying the claim against Public Service. Thus, it is immaterial that the record contains some evidence, including Dr. Ryan’s report, which if credited could support a contrary determination See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (ALJ sole arbiter of conflicting medical opinions).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 16, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 20, 1998
to the following parties:
Herbert Douglas Skeff, 2669 South Pitkin Way, Aurora, CO 80013
Public Service Company of Colorado, Attn: Kimberly Costin, P.O. Box 840, Suite 800, Denver, CO 80201
Product Development Corporation, 13100 E 39th Ave., Unit U, Denver, CO 80201
National Union Fire Insurance Co. of Pittsburgh, AIG Claims Service, P.O. Box 32130, Phoenix, AZ 85064
Linda Hansen, Hansen Company, 4155 E. Jewell St., Ste. 1016, Denver, CO 80222
Sean Kendall, Esq., 1942 Broadway, Ste. 403, Boulder, CO 80302 (For the Claimant)
Michael A. Perales, Esq. and Dawn M. Yager, Esq., Ritsema Lyon, P.C., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
James B. Fairbanks, Esq. and Alyson A. Ray, Esq., 999 18th Street, Suite 1600, Denver, CO 80202 (For the Respondents)
BY: ______________________