W.C. No. 4-521-404Industrial Claim Appeals Office.
April 25, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which found the claimant failed to prove an injury caused by the performance of services arising out of and in the course of employment. The claimant contends the ALJ applied an incorrect standard of law, and that the pertinent findings of fact are not supported by substantial evidence. We affirm.
The claimant testified that on May 10, 2001, she sustained injuries to her neck and upper extremities when lifting a patient. The claimant introduced evidence that she promptly reported the injury and was diagnosed with a cervical strain. She also produced evidence that on July 13, 2001, an MRI revealed the presence of a C6-7 disc herniation and the presence of an osteophyte.
However, the ALJ found the claimant was a “poor historian” and her credibility suffered from failure timely to disclose preexisting conditions to her treating physicians. Specifically, the ALJ found the claimant had been diagnosed with fibromyalgia in 1996, and this condition caused various symptoms similar to those which the claimant reported after the alleged injury. The ALJ also noted the claimant testified that she was injured when lifting with her left arm, but reported to the employer and treating physician that she injured the right extremity. Finally, the ALJ found the claimant failed to disclose, despite a direct question from the employer, that she had a prior worker’s compensation injury which resulted in permanent lifting restrictions.
Under these circumstances, the ALJ found the claimant failed to prove an injury caused by the employment. Instead, the ALJ found it more likely than not that the claimant’s symptoms were caused by preexisting fibromyalgia. Thus, the ALJ denied the claim for benefits.
On review, the claimant first contends the ALJ misapplied the law. The claimant asserts the ALJ ignored the “objective medical evidence” that the claimant’s symptoms were caused by an injury-related disc herniation, not fibromyalgia. The claimant argues the ALJ “usurped the opinion of the medical professionals,” including Dr. Ogrodnick, who diagnosed the claimant with an injury-related cervical strain and attributed the claimant’s upper extremity symptoms “to her herniated disc enough to order an MRI.” (Claimant’s Brief at pp. 5-6).
We perceive no misapplication of the law by the ALJ. The claimant had the burden to prove that her condition was proximately caused by an injury arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2002. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
There is no requirement that causation be proven by medical evidence. However, when medical evidence is presented, it is for the ALJ to assess its weight and credibility. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The ALJ may choose to discredit unrebutted medical evidence, particularly if the ALJ finds it is based on a mistaken or incomplete understanding of the claimant’s medical history. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006
(1968); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
Here, there is no indication the ALJ misapplied the law in assessing the medical evidence. The ALJ recognized that the diagnosis of cervical strain was based largely on the claimant’s statements to the physicians that she injured herself on May 10, and that this injury was the beginning point for her various symptoms. However, the ALJ found the claimant was not credible concerning the source of her symptoms, and implicitly that the medical diagnoses based on her statements were not reliable. Moreover, there is substantial evidence, including medical evidence, that most of the claimant’s symptoms pre-dated the alleged industrial injury and could be explained by the preexisting fibromyalgia. The fact the respondents did not produce a medical opinion specifically supporting their theory of the case was a matter for the ALJ to consider when assessing the weight of the evidence.
Moreover, the fact the MRI showed a herniated disc did not conclusively prove the herniated disc was caused by or aggravated by the alleged industrial injury. Although such an inference might have been permissible, it is certainly not compelled by the record.
The claimant next contends the evidence does not support the ALJ’s finding that the claimant’s symptoms are most probably associated with fibromyalgia. However, we find no error.
As noted, there is evidence that the claimant’s preexisting fibromyalgia could explain most of the claimant’s post-injury symptoms. (Respondents’ Exhibit G at p. 57). Moreover, the claimant herself admitted the symptoms of fibromyalgia fluctuate. (Tr. p. 25). Although there was some evidence the claimant’s symptoms differed after the alleged injury, the ALJ did not find such evidence persuasive. Of greater importance, the ALJ was not persuaded the claimant was a credible witness concerning the alleged injury, and the ALJ cited specific evidence in support of the conclusion that the claimant is not credible. On this state of the evidence we may not substitute our judgment for that of the ALJ concerning the inferences to be drawn from this record.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that he ALJ’s order dated August 12, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 25, 2003 to the following parties:
Kerri West, 623 N. Weber St., Apt. A-5, Colorado Springs, CO 80903
Todd Hager, HealthSouth Rehabilitation, P. O. Box 382736, Birmingham, AL 35238
Pacific Employer’s Insurance, c/o Evilyn Radmacher, ACE/ESIS, Inc., P. O. Box 911, Portland, OR 97207
Frederick W. Newall, Esq., 730 N. Weber, #101, Colorado Springs, CO 80903 (For Claimant)
Kathleen M. Fairbanks, Esq., and Gregory Daniels, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Pendroy