W.C. No. 4-234-788Industrial Claim Appeals Office.
September 11, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) insofar as it determined that the claimant suffered from a compensable occupational disease, and awarded benefits. We affirm.
In December 1994, the claimant filed an Application for Hearing listing the issues as compensability, medical benefits, and temporary total disability benefits for September 1994 and subsequent to December 2, 1994. The application was accompanied by a Motion for Expedited Hearing stating that the claimant was not receiving benefits for an injury which occurred “on or about September 9, 1994.”
At the hearing, the respondents admitted that the claimant sustained a compensable back injury while riding a horse on September 9, 1994. The respondents also admitted liability for certain medical benefits and for temporary disability benefits in September 1994. (Tr. p. 17). However, the respondents continued to resist liability for benefits payable subsequent to September.
The claimant called Dr. Rook as a witness. Dr. Rook testified that, when he examined the claimant on December 10, 1994, he diagnosed sacroiliac joint dysfunction, myofascial pain, and bulging or herniated discs at L4-5 and L5-S1. Dr. Rook opined that he was treating the claimant’s “symptomatology” resulting from the September 1994 accident. (Tr. pp. 44, 63). However, Dr. Rook also opined that the claimant’s disc problems were the result of pre-existing degenerative changes which were aggravated or accelerated by the claimant’s heavy work. (Tr. pp. 46-47, 68-69).
Under these circumstances the ALJ found that the claimant suffered a compensable injury in September 1994, as well as a compensable occupational disease resulting from heavy labor. The ALJ also found that the claimant was last injuriously exposed to the hazards of this disease while employed by the respondent-employer. Consequently, the ALJ determined that the respondents are obliged to pay temporary disability benefits and medical benefits.
I.
On review, the respondents first contend that they were denied due process of law because they did not receive notice that the claimant was seeking compensation for an “occupational disease.” They also allege that the claimant’s failure to list the issue of “occupational disease” on the application for hearing violated Rule of Procedure VIII(A)(1), 7 Code Colo. Reg. 1101-3 at 21. We reject this argument.
We assume, arguendo, that the respondents were entitled to “notice” that the claimant was seeking compensation for an occupational disease in addition to compensation for the alleged accidental injury of September 9, 1994. However, as argued by the claimant, the right to notice may be waived and issues tried by consent. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). We find a waiver in the circumstances present here.
As argued by the claimant, Dr. Rook was called as a witness and gave testimony suggesting that a portion of the claimant’s back problems are the result of degenerative changes aggravated by the conditions of employment. The respondents did not object to this testimony or move for a continuance based on surprise. Instead, they cross-examined Dr. Rook concerning these issues and sought to impeach his testimony by having him admit that all persons of the claimant’s age are subject to some degree of disc degeneration. (Tr. pp. 59-63).
Under these circumstances, we conclude that the respondents waived any objection based upon lack of notice. The respondents never requested the opportunity to present additional evidence, and availed themselves of the opportunity for cross-examination.
II.
The respondents next contend that Dr. Rook’s testimony does not constitute substantial evidence to support the finding that the claimant suffers from an occupational disease. We reject this argument.
An occupational disease results from hazards of the employment, which may be seen as a “natural incident of the work,” and can “be fairly traced to the employment as a proximate cause.” Section 8-40-201(14), C.R.S. (1995 Cum. Supp.); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). The mere existence of a pre-existing or pre-disposing condition does not negate the compensability of an occupational disease if the hazards of employment contribute to the disease and cause disability which would not otherwise have existed. See Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
Questions of causation are factual matters for resolution by the ALJ, and his determinations must be upheld if supported by substantial evidence F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985); §8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we are not at liberty to substitute our judgement for that of the ALJ concerning the weight and credibility of expert medical testimony. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, to the extent that a particular medical expert’s testimony contains internal inconsistencies, it is for the ALJ to resolve such inconsistencies. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents’ arguments notwithstanding, Dr. Rook’s testimony supports the ALJ’s finding that the claimant suffered from a pre-existing disc condition which was aggravated by the nature of his employment with the respondent-employer. (Tr. pp. 68-69). It is true that Dr. Rook’s testimony contains some internal inconsistencies, and that it might have supported a contrary finding. However, the ALJ resolved the inconsistencies against the respondents, and we decline the respondents’ invitation to substitute our judgement for that of the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order, dated February 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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 September 11, 1995 to the following parties:
Cody Walton, 34132 County Road 26, McClave, CO 81057
Beef City, Inc., P.O. Box 8, McClave, CO 81057
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq. (Interagency Mail)
Tim Guill, Esq., 1777 S. Harrison St., #906, Denver, CO 80210 (For the Claimant)
Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
Douglas P. Ruegsegger, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For the Respondents)
Amy L. Brewer, Esq., 102 S. Tejon St., #1100, Colorado Springs, CO 80903 (For the Respondent-Employer)
By: ________________________