W.C. Nos. 3-961-299 3-993-994Industrial Claim Appeals Office.
August 10, 1995
FINAL ORDER
In these consolidated workers’ compensation claims, the claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ) which denied her claim for permanent disability benefits. We affirm.
Relying principally on the testimony of Dr. Rose, the ALJ found that the claimant suffered from asthma, and the asthma pre-dated her industrial exposure to respiratory irritants on October 18, 1989, and July 2, 1990. The ALJ further found that, although the claimant has a ten percent medical impairment attributable to her asthma, the claimant failed to prove that the industrial exposures caused any of the permanent impairment. Rather, the ALJ concluded that the industrial exposures “merely caused temporary aggravations of” the underlying asthma. Thus, the ALJ denied the claim for permanent disability benefits.
On review, the claimant contends the ALJ erred, as a matter of fact and law, in denying the claim for permanent disability benefits. The claimant argues that, under the applicable law, she is entitled to permanent disability benefits to the extent the industrial exposures “aggravated” her underlying condition and produced the impairment described by Dr. Rose. The claimant asserts that the evidence compels an award of permanent disability benefits. We reject this argument.
Initially, we do not dispute the claimant’s legal assertion that, where a work-related injury accelerates or aggravates a pre-existing condition, the resulting disability is compensable. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the issue in this case was not whether the claimant suffered “compensable” events when she was exposed to the irritants. Rather, the question is whether these exposures are the cause of the permanent impairment on which the claimant bases her claim for permanent disability benefits.
In order for the claimant to establish compensable permanent disability, she was required to prove that the industrial irritants, to which she was exposed in 1989 and 1990, “bear a direct causal relationship” to the disability for which she is claiming compensation. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). A claim for permanent disability may be denied where the evidence demonstrates that an industrial injury has temporarily aggravated a pre-existing condition, but the industrial aggravation has not caused any permanent disability which did not pre-date the injury. Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981).
Moreover, the question of whether the claimant has proven the requisite causal connection is one of fact for resolution by the ALJ Eisnach v. Industrial Commission, supra. Because the issue of causation is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.). In applying this standard, we obliged to defer to the ALJ’s resolution of the conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We specifically note that it is for the ALJ to assess the weight and credibility of medical evidence pertaining to causation. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
The claimant’s arguments notwithstanding, the testimony of Dr. Rose supports the ALJ’s denial of permanent disability benefits. Dr. Rose testified that the claimant suffers from asthma, probably as a result of a 1988 viral infection, and the asthma has resulted in a ten percent medical impairment. Dr. Rose also stated that the claimant did not develop this condition as a result of her 1989 and 1990 workplace exposures. Dr. Rose simply stated that the claimant’s pre-existing condition tended to make the claimant “more susceptible to the aggravating effects of the irritants that she was exposed to at work.” (Rose depo. pp. 27-28).
Under these circumstances, the record supports the ALJ’s determination that the claimant’s permanent impairment, attributable to asthma, was not caused by the industrial “aggravations” which she experienced in 1989 and 1990. Instead, the ALJ could logically infer that the 1989 and 1990 exposures resulted in an elevation of the claimant’s symptoms, and these elevations were only temporarily disabling. Eisnach v. Industrial Commission, supra. It is true that the evidence might have been interpreted differently, but we are not in a position to substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).
Insofar as the claimant has made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 28, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed August 10, 1995 to the following parties:
Alene Smoot, 6910 W. 55th Pl., Arvada, CO 80002
Jefferson County, 1700 Arapahoe St., Golden, CO 80401-6130
Alexsis, Inc., Attn: Norma Logue, 1099 18th St., #3050, Denver, CO 80202-1930
J. Scott Murray, Esq., 3773 Cherry Creek Drive North, #575, Denver, CO 80209
(For the Claimant)
William A. Tuthill III, Esq., Assistant County Attorney, 100 Jefferson County Pkwy., Golden, CO 80419-5500
(For the Respondent)
By: _______________________