W.C. No. 4-312-026Industrial Claim Appeals Office.
November 20, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which denied his claim based on an occupational disease. We affirm.
The ALJ found that the claimant suffers from degenerative arthritis of his right knee. The claimant argued that this condition is the result of an injury which he sustained on December 12, 1995 or, alternatively, the result of numerous insults to his knee sustained in the course of his employment as a deputy sheriff.
The ALJ found, on conflicting evidence, that the claimant did not sustain an injury on December 12, 1995. Moreover, the ALJ credited the opinion of the respondent’s medical expert, Dr. Dinenberg, concerning the causes of the claimant’s arthritis. Dr. Dinenberg stated the following:
“These problems are not of a one-time occurrence such as a single trauma of one falling to one’s knee, as related in the workplace incident of December 5, 1995. [sic] Additionally, the patient has aggravating factors for degenerative arthritis which are, for one, that he is carrying a great deal of weight. The patient has a congenital lateral subluxation of the right and left knees which may be the underlying anatomic problem that causes this. The contribution of gout to the patient’s degenerative condition of the knee is unknown to me.
As to the question of the problem being occupational in nature, one can say that every incident in one’s life adds up to the final condition that someone is in at any one time. Falling on one’s knee is certainly one of those conditions, and if asked to place a contributing number to this, I would say that this would be less than 1% of the whole.”
The ALJ cited Dr. Dinenberg’s opinion as evidence that the claimant failed to establish that the hazards of the employment caused, intensified, or aggravated to some reasonable degree the disability for which compensation was sought. Under these circumstances, the ALJ found that the claimant failed to prove that he sustained an occupational disease arising out of the employment.
On review, the claimant contends that the ALJ erred as a matter of fact and law in denying the claim based on the alleged occupational disease. The claimant argues that he demonstrated the arthritis was either caused or aggravated by numerous knee injuries which he experienced over the course of his employment as a deputy. The claimant also argues that his theory is supported by Dr. Dinenberg’s opinion that “falling on one’s knee” can contribute to a person’s overall condition. We are not persuaded.
Section 8-40-201(14), C.R.S. 1997, defines an occupational disease as a disease resulting from the conditions under which the work was performed, which followed as a natural incident from the exposure occasioned by the work, “and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the work would have been equally exposed outside of the employment.” In applying the language concerning equal exposure, it has been held that if the claimant’s disease has multiple causes, some of which are occupational and some of which are not, the “claimant is entitled to recovery only if the hazards of employment cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought.” Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). Thus, a claimant suffers from an occupational disease “only to the extent that the occupational exposure contributed to the disability.” Id. at 825.
The claimant carries the initial burden to establish that he suffers from an occupational disease that was directly and proximately caused by the conditions of employment. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). The question of whether the claimant carried his burden of proof to establish causation is one of fact for determination by the ALJ. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983).
Because the issue of causation is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997 City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). In applying this standard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, it is for the ALJ to assess the weight and credibility of expert the medical evidence concerning causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s conclusion that the claimant failed to carry his burden of proof. As we understand the ALJ’s order, he has found that Dr. Dinenberg’s report establishes that the claimant’s degenerative arthritis is best explained as the result of a congenital condition which causes deterioration of the knee joint. Further, the report may be read to mean that, although the claimant’s work could have contributed to his condition, the contribution was so small and indefinite as to be speculative. Moreover, the ALJ’s conclusion is supported by evidence that the claimant’s treating physician, Dr. Bereznoff, advised an insurance company that the claimant’s knee problems are not work-related.
In view of our conclusion we do not consider the respondent’s alternative arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 13, 1997, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing is a petition to review with the court, with service of is a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 20, 1997
to the following parties:
Darryl R. Wallace, 18830 Kelly Place, Denver, CO 80249
Rodyne Roche, Risk Manager, Adams County, 450 S. Fourth Ave., Brighton, CO 80601
Shirley Williamson, 1829 Denver West Dr., Bldg. 27, P.O. Box 4001, Golden, CO 80401
Sally MacLuckie, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237-1430 (For the Claimant)
Pamela Musgrave, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203 (For the Respondent)
By: __________________________