W.C. No. 4-355-183Industrial Claim Appeals Office.
November 9, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay temporary disability and medical benefits. We affirm.
The claimant suffered a work-related injury on July 6, 1997, when he struck his left hand with a white mallet while preparing seafood for the respondent-employer. On July 30, 1997, the claimant sought treatment from Dr. Majors. An X-ray revealed a foreign object in the claimant’s left hand. However, Dr. Majors observed no sign of a recent penetrating injury. Dr. Wunder made the same observation during an examination on September 10, 1997.
On September 12, 1997, the claimant voluntarily quit his employment with the respondent-employer and began working at Texaco. On September 23, 1997, claimant received emergency treatment for an infection and acute swelling in the left hand. He was hospitalized, underwent surgery to remove the foreign object, and was treated for complications related to the surgery. The claimant did not return to work until November 4, 1997.
At hearing, the respondents admitted liability for the July 6 industrial injury. (Tr. pp. 3, 4). However, the respondents denied liability for the medical treatment commencing September 23, 1997, and all temporary disability benefits.
The ALJ found that the “foreign body was introduced into the claimant’s hand as a result of the work-related accident on July 6, 1997, or the work-related accident of July 6, 1997 aggravated the tissue near the foreign body and resulted in the need for medical care.” Therefore, the ALJ ordered the respondents to pay for the medical expenses incurred to surgically remove the foreign body and the subsequent complications. Furthermore, the ALJ awarded temporary disability benefits from September 23, 1997 to November 4, 1997.
On review, the respondents contend that there is ” no probative evidence” to support the ALJ’s finding of a causal relationship between the July 6 industrial injury and the claimant’s need for medical treatment to remove the foreign body. In support, the respondents rely upon evidence that the claimant was using a “white plastic” mallet at the time of the industrial injury, and the X-ray taken by Dr. Majors revealed a “metallic” foreign object in the claimant’s hand. Nevertheless, we disagree with the respondents’ argument.
The claimant had the burden of proof to establish that the need for treatment to remove the foreign object and the subsequent complications are causally connected to the industrial injury Industrial Commission v. Havens, 136 Colo. 111, 314 P.2d 698
(1957); Morrison v. Industrial Claim Appeals Office, 760 P.2d 654
(Colo.App. 1988). Regardless of whether the exact medical cause of the injury is “shrouded in mystery,” the evidence is sufficient if the claimant presented circumstances indicating to a reasonable probability that the need for treatment was precipitated by the industrial injury. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ findings may be inferences from circumstantial evidence).
Whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Further, a claimant is not required to prove causation by medical evidence. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that employment caused his heart attack). However, to the extent medical evidence is presented, it is the ALJ’s sole prerogative to assess the sufficiency and probative value of that evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Insofar as the medical testimony is inconsistent or subject to conflicting interpretations, we are bound by the ALJ’s resolution of those inconsistencies and the plausible inferences the ALJ drew from the conflicts. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it).
The respondents’ argument notwithstanding, we believe there is sufficient circumstantial evidence from which the ALJ could, and did, reasonably infer that the foreign object was implanted in the claimant’s left arm during the industrial injury. Admittedly, there is no evidence the claimant suffered a penetrating injury on July 6. However, Dr. Wunder stated that Dr. Majors may have missed the penetrating nature of the injury because Dr. Majors did not examine the claimant until two weeks after the injury and the claimant’s hand was swollen. (Wunder depo. p. 17). Further, Dr. Sanderford reported that the foreign object was plastic or plastic-covered metal, (September 25, 1997), and Dr. Wunder testified that he could reach no other conclusion than that the object was implanted in the claimant’s hand during the industrial injury because he “had no other history of other trauma to the area, and the object was a piece of plastic.” (Wunder depo. p. 16). We also note that the respondents did not present any evidence that the foreign object was introduced prior to July 6 or during any injury after July 6.
Moreover, even if the ALJ erroneously found that the foreign object was not imbedded in the claimant’s hand on July 6, there is substantial evidence from which the ALJ could reasonably infer that the July 6 injury aggravated the claimant’s tissue near the foreign body and caused the need for medical treatment commencing September 23, 1997. On September 25, 1997, Dr. Sanderford opined that the disputed treatment was necessitated by the industrial injury because the industrial injury resulted in pain and swelling at the location of the foreign object. Most importantly, the claimant testified that his left hand problems began after the July 6 industrial injury and denied any injuries between July 6 and September 23, 1997. (Tr. pp. 11, 15, 35).
It is certainly true that there is some evidence, which would support contrary findings and conclusions. However, we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the sufficiency of that evidence and inferences to be drawn from the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
With regard to the temporary disability award, the respondents argue only that the award is improper because there is no casual connection between the injury and the hand surgery. In light of our resolution of the causation issue, it follows that there is no error in the temporary disability award. See §8-42-105(1), C.R.S. 1998.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 30, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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 9, 1998
to the following parties:
Eric Smith, P.O. Box 1502, Ault, CO 80610-1502
Wal Mart Stores Inc., Attn: Jonnie Schommer, 3103 23rd Ave., Greeley, CO 80631-8750
Insurance Company of the State of Pennsylvania, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Jon Causseaux, Claims Management Inc., 3901 Adams Road Suite C, Bartlesville, OK 74006-8458
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For the Claimant)
Richard A Bovarnick, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Suite 400, Denver, CO 80227 (For the Respondents)
BY: ______________________