W.C. No. 4-483-290Industrial Claim Appeals Office.
July 19, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) insofar as the ALJ required them to pay for a right hip surgery. We affirm.
It is undisputed the claimant suffers from non-industrial, avascular necrosis in both hips. On February 9, 2000, the claimant suffered a work-related injury to his right hip during a fall. The respondents admitted liability for a compensable aggravation of the claimant’s avascular necrosis of the right hip.
On November 29, 2000, the claimant underwent surgery to treat the avascular necrosis in the left hip. Surgery on the right hip was recommended, but the respondents denied liability.
The ALJ found the claimant sustained his burden to prove care and treatment of the right hip, including the recommended surgery, is causally related to and necessitated by the industrial injury. Therefore, the ALJ held the respondents liable for the cost of the right hip surgery. The ALJ also awarded temporary disability benefits.
On review the respondents contend there is insufficient evidence to support the ALJ’s award of medical benefits for the right hip surgery. They contend there is no evidence the right hip surgery is necessitated by the industrial fall rather than a natural progression of the pre-existing avascular necrosis. In support, the respondents rely on the undisputed fact that the left hip surgery was a natural consequence of the avascular necrosis. We reject this argument.
The respondents are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2000; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The determination of whether a particular treatment is reasonable and necessary to treat the industrial injury as opposed to a pre-existing condition is a question of fact for the ALJ, and we may not disturb his resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000 City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984). Further, treatment necessitated by an industrial aggravation or acceleration of a pre-existing condition is compensable. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Substantial evidence is that quantum of probative evidence which a rational fact- finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); 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). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
The respondents’ arguments notwithstanding, the ALJ’s finding of a causal connection between the claimant’s need for right hip surgery and the industrial injury is supported by substantial evidence and plausible inferences drawn from the record. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ findings may be inferences from circumstantial evidence). Therefore, the ALJ’s finding is binding on review.
The claimant testified the avascular necrosis was asymptomatic before the industrial injury and that the right hip pain developed after the fall. The ALJ expressly credited the claimant’s testimony as consistent with the medical records. (Tr. p. 42; finding of Fact 1).
In a report dated October 2, 2000, Dr. Cavanaugh diagnosed Grade I avascular necrosis of the left hip and Grade III on the right. Dr. Cavanaugh subsequently referred the claimant to Dr. Kelly. Dr. Kelly opined that avascular necrosis may be silent and not symptomatic until the patient suffers “a subchondral fracture and/or collapse of the femoral head.” With regard to the claimant, Dr. Kelly opined the claimant’s right avascular necrosis was significantly more advanced than on the left. In particular, Dr. Kelly opined the claimant experienced a collapse of the right femoral head which “quite likely” was caused by the industrial fall and required urgent surgical repair. (Kelly March 1, 2001).
The claimant’s prior left hip surgery consisted of a core decompression and grafting of the left femoral head. Dr. Kindsfater opined that because the claimant had a subchondral collapse on the right, a core decompression surgery had a poor chance of relieving the claimant’s right hip pain. (Kindsfater October 31, 2000). Instead, he recommended femoral resurfacing. Dr. Kelly agreed the claimant required a surface replacement of the femoral head to avoid a total hip arthroplasty.
In view of the undisputed fact that the industrial injury caused a compensable aggravation of the claimant’s right avascular necrosis, evidence the right necrosis was more advanced than the left, and the claimant suffered a femoral head collapse on the right which required a distinct surgical procedure from the surgery performed on the left hip, the ALJ reasonably found the industrial injury was the proximate cause of the need for the right hip surgery.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 28, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 19, 2001 to the following parties:
Eugene VanWhye, 1819 27th Ave., Greeley, CO 80634
Albert Jerman, Kaiser Hill d/b/a Rocky Flats Environmental Tech., 10808 Highway 93, Unit B, Bldg. 850, Golden, CO 80403-8200
Reliance National Indemnity, P. O. Box 16025, Phoenix, AZ 85028
Judy Bereza, Sterling Administrative, P. O. Box 16308, Phoenix, AZ 85011-6308
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Benjamin E. Tracy, Esq. and Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy