W.C. Nos. 4-644-779, 4-567-630.Industrial Claim Appeals Office.
June 9, 2006.
FINAL ORDER
Respondent, the Salvation Army, seeks review of an order dated December 28, 2005 of Administrative Law Judge Stuber (ALJ), which determined that it was liable for medical benefits and denied a claim against respondents Pro Ex Contractor and Pinnacol Assurance. We affirm.
The file includes the claimant’s motion to consolidate, in which the claimant explains that he initially filed a claim against the Salvation Army for an injury to his hand and wrist incurred on January 10, 2003. He subsequently made a “protective filing” asserting a claim against Pro Ex Contractors in light of an independent medical examination (IME) report that attributed his wrist complaints and corresponding need for surgery to the claimant’s work for Pro Ex.
The matter proceeded to hearing and the ALJ determined that the claimant failed to establish an occupational disease from working at Pro Ex. Instead, he decided that the Salvation Army was responsible for the cost of the surgery as a medical benefit related to the claimant’s injury in 2003. The ALJ `s pertinent findings of fact are summarized as follows.
The claimant sustained an admitted work-related injury on January 10, 2003, when a vehicle backed into the car he was exiting and caused a crush injury to his right wrist. He was working for the Salvation Army at the time of this injury. The claimant received subsequent treatment for a chip fracture of his wrist and for back pain. About a month later, he was treated for neck and back injuries from a nonindustrial motor vehicle accident.
The claimant left his employment at the Salvation Army, but he continued to be troubled by his right wrist while working and, also, when physically active outside of work. The claimant’s treating physician placed him at maximum medical improvement on November 20, 2003, provided a medical impairment rating, and released him to full activities. The claimant received additional medical treatment for his wrist from time to time.
The claimant worked as a laborer for Pro Ex from May 4 through August 24, 2004. The claimant underwent an MRI on September 20, 2004, which revealed torn cartilage in his right wrist for which his treating physician recommended surgery. His treating physician, Dr. Bach, opined that the torn cartilage was related to his wrist symptoms. Dr. Ridings conducted IMEs for the Salvation Army and opined that the torn cartilage was a new injury suffered when Pro Ex employed the claimant. However, Dr. Scott performed an IME for Pro Ex and opined that the claimant did not suffer a new injury while working for Pro Ex.
The ALJ found that the claimant’s continuing right wrist problems stemmed from his 2003 injury while working for the Salvation Army and, also, that any cartilage tear occurred at that time. He therefore found that the claimant did not suffer a second injury in the nature of an occupational disease while working for Pro Ex, and held the Salvation Army liable for ongoing medical treatment, including the wrist surgery recommended by Dr. Bach.
On appeal, the Salvation Army asserts that the ALJ erred in concluding that the January 10, 2003 crushing incident is the proximate cause of the claimant’s current wrist problems. We disagree.
As the ALJ noted, an occupational disease is defined by statute:
`Occupational disease’ means a disease which results directly from the employment or the conditions under which 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 of the employment.
§ 8-40-201(14), C.R.S. 2005. The ALJ, following this definition, found the claimant failed to sustain his burden to prove an occupational disease affecting his right wrist.
The question of whether the claimant’s medical problem is the result of a worsening of a prior injury, or an occupational disease is factual. Campbell v. IBM Corp., 867 P.2d 77
(Colo.App. 1993). Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (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 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. Moreover, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). 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).
Although the evidence is subject to different interpretations, we conclude that substantial evidence supports the ALJ’s findings. In particular we note the report and testimony of Dr. Scott. Tr. at 93; Exhibit 5. The ALJ found that the claimant’s work activities for the second employer merely continued to demonstrate the claimant’s ongoing symptoms from the January 10, 2003, accidental injury. The report from the treating surgeon, Dr. Bach, noted that the claimant had problems with his wrist over the time following his injury which had been precipitated by specific use. Exhibit 2 at 26. We perceive no basis on which to interfere with the ALJ’s decision.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 28, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Benjamin Taylor, Colorado Springs, CO, Salvation Army, Colorado Springs, CO, Pro Ex Contractors, Peyton, CO, Alixe Varbick, Adjuster, Gallagher Bassett Services, Inc., Englewood, CO, Renee C. Ozer, Esq., Colorado Springs, CO, (For Claimant).
David J. Dworkin, Esq. and Justin L. Miller, Esq., Denver, CO, (For Respondent Salvation Army).
Harvey D. Flewelling, Esq., Pinnacol Assurance — Interagency Mail (For Respondents Pro Ex Contractors and Pinnacol Assurance).