W.C. No. 4-662-123.Industrial Claim Appeals Office.
July 26, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated February 21, 2006 that concluded that the claimant sustained an occupational disease and that ordered the respondents to pay temporary disability benefits and medical benefits. We affirm.
A hearing was held on the issues of the compensability of the claimant’s alleged occupational disease and her entitlement to medical benefits. Following the hearing the ALJ entered findings of fact that may be summarized as follows. The claimant worked in the employer’s jewelry department beginning in December 1999, and subsequently transferred to the pharmaceutical department on November 20, 2004. As a pharmacy technician the claimant was required to perform more physically demanding job duties that included climbing ladders to stock shelves, and unloading freight weighing in excess of 20 pounds. Her job duties also included sitting, squatting, stocking boxes weighing up to 20 pounds, counting pills, and tending the register. Although the claimant had received maintenance care for back problems since 2001, in July 2005 she experienced increased pain in her low back, left hip, and left leg. In August 2005 she consulted Dr. Solecki, who removed her from work and she then sought treatment from Dr. Harms, who diagnosed low back pain with left sciatica. He prescribed pain medication and performed an injection. On August 13, 2005, the claimant returned to work pursuant to a release to do so from Dr. Majors, and the symptoms in her back, hip and leg returned when she resumed performing her work. The ALJ expressly credited the medical opinions of Dr. Harms and physician’s assistants Grover and Bentsen that the claimant’s symptoms were caused by her job duties. The ALJ found that the claimant’s work in the pharmacy department aggravated her previous condition and caused her symptoms. Based upon her factual findings, the ALJ concluded that the claimant sustained an occupational disease, and she ordered the respondents to pay temporary disability benefits and medical benefits.
The respondents appealed and raise two arguments. First, the respondents contend that the ALJ’s conclusion that the claimant sustained an occupational disease is not supported by substantial evidence. And, second, they contend that because the medical providers relied upon an inaccurate medical history, the claimant failed to present a prima facie case that she had sustained an occupational disease. We are unpersuaded that the ALJ erred.
Section 8-40-201(14) defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under § 8-40-201(14), C.R.S. 2005 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought. Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 8-43-304(8), C.R.S. 2005 City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). 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 testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). We note that expert medical opinion is not needed to prove causation where circumstantial evidence supports an inference of a causal relationship between the injury and the claimant’s condition Savio House v. Dennis, 665 P.d. 141 (Colo.App. 1983). Where conflicting expert opinion is presented, it is for the ALJ as fact-finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
Contrary to the respondents’ arguments, there is ample evidence supporting the ALJ’s determination that the claimant sustained an occupational disease. Indeed, as the respondents appear to recognize, the claimant’s testimony alone is sufficient to support the order. See Savio House v. Dennis, supra. She testified that, although she had prior back problems beginning when she was a teenager, her chiropractic treatment for those problems was “sporadic” and she only had pain “maybe once or twice a month.” Tr. at 22. She further testified that when she transferred to the employer’s pharmacy department she was required to perform more strenuous job duties that included climbing ladders frequently and lifting freight weighing 20 pounds and occasionally more. Tr. at 17-19. She stated that her back pain got “worse and worse” as she performed the duties of a pharmacy technician, and that eventually the pain went into her hip and leg and impaired her ability to stand and walk. Tr. at 23-24. The claimant finally sought medical care because the “pain had increased and gotten so bad that it was painful to walk and [the claimant] didn’t know what else to do.” Tr. at 25. As noted, this constitutes circumstantial evidence sufficient to support the ALJ’s conclusion that the claimant sustained an occupational disease.
This evidence, although sufficient in itself, is bolstered by the opinions of Dr. Harms and physician’s assistants Grover and Bentsen, all of which the ALJ expressly credited as persuasive. Dr. Harms testified by deposition that after examining the claimant and reviewing certain other medical reports, he “did feel that there was a connection between the return to work after seeing Dr. Majors and the increased symptoms.” Deposition of Thomas Harms, M.D. at 32 (hereinafter Harms Depo.) He further stated that, “There seemed to be a definite correlation there.” Harms Depo. at 32. Moreover, physician’s assistant Bentsen testified that “the mechanism of the claimant’s injury” was her job duties as a pharmaceutical technician. Deposition of Cody Bentsen, PA-C at 49 (hereinafter Bentsen Depo.) She further stated that the claimant’s symptoms were “definitely probable from that type of work.” Bentsen Depo. at 50. Similarly, physician’s assistant Grover stated in a letter that “[i]t is medically probably that these symptoms are attributed to a work-related injury considering the activities that she did on a day-to-day basis with Wal-Mart.” Report of Jeremy Grover, PA-C at 1 (Oct. 3, 2005). Moreover, the evidence in the record that would support inferences contrary to those reached by the ALJ does not afford the respondents any basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Nor does the respondents’ argument that the medical opinions were based upon faulty or erroneous historical facts require reversal of the ALJ’s order. The ALJ either heard or read the testimony and the parties’ position statements, and she had the benefit of the entire record, including both the evidence in favor of and contrary to the positions of both parties. We presume that the ALJ gave due weight to the evidence and the arguments of the parties. See Madrid v. Larimer County, 502 P.2d 1118 (Colo.App. 1972). The fact that an expert may possess an incomplete understanding of a claimant’s medical history goes to the weight of his testimony. Industrial Commission v. Albo 167 Colo. 467, 447 P.2d 1006 (1968). It is the ALJ as the fact finder who is solely responsible for determining the weight to be given expert testimony. Cordova v. Industrial Claim Appeals Office, supra. It is not our function to reweigh the evidence, and we are unpersuaded that the ALJ committed reversible error in performing that role.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 21, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Shenandoah Statley, Greeley, CO, Wal-Mart Stores, Inc., Greeley, CO, American Home Assurance, Bentonville, AR, Katherine E. Allen, Esq, St. Greeley, CO (For Claimant).
Richard A Bovarnick, Esq., Denver, CO (For Respondents).