W.C. No. 4-367-880Industrial Claim Appeals Office.
September 25, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied the claim for benefits based on an alleged occupational disease. The claimant contends the ALJ erred in relying on the opinions of two medical experts. We affirm.
In June 1997, the claimant suffered a severe “crush injury” to his left wrist while employed by DFC Ceramics. The claimant’s treating physician, Dr. Boyer, repaired a laceration of the wrist, and referred the claimant to Dr. Carlson, an orthopedic surgeon. On June 13, 1997, Dr. Carlson surgically repaired a laceration of the claimant’s flexor carpi tendon.
On August 13, 1997, the claimant returned to Dr. Boyer and requested that Dr. Boyer establish restrictions which would permit the claimant to return to work for the respondent-employer, Ready’s Ice Co. (Ready’s). The job required the claimant to lift bags of ice weighing from 6 to 50 pounds, and to stack the bags on pallets. Dr. Boyer then established restrictions permitting the claimant to lift 50 pounds with both hands, and 20 pounds with the left hand. The claimant commenced work at Ready’s on August 14.
By September 22, 1997, the claimant was experiencing increased pain in his left forearm. Dr. Boyer diagnosed signs of deQuervain tendinitis, but permitted the claimant to return to work at Ready’s because the claimant did not report the work was exacerbating his condition. On September 25, 1997, the claimant was examined by Dr. Carlson who confirmed the diagnosis of deQuervain tendinitis, and opined the condition was “related to his [June] injury because of scarring and swelling.” Dr. Carlson did not remove the claimant from work at this time. However, by October 30, 1997, Dr. Carlson recommended surgery, and Dr. Boyer restricted the claimant from work in November 1997.
Eventually, the claimant filed a claim for benefits alleging that he sustained an occupational disease (deQuervain tendinitis) as a result of lifting bags of ice while employed at Ready’s. In support, the claimant offered the deposition of Dr. Carlson who testified the claimant’s need for surgery was caused by a combination of the initial crush injury and an aggravation resulting from the “repetitive activities with the ice company.” Dr. Carlson explained his opinion concerning causation had changed since September 25, 1997, because he did not know the claimant’s “job situation” in September 1997. (Carlson Depo. pp. 17, 19). The respondents relied on the reports and deposition testimony of Dr. Boyer, who opined the claimant’s deQuervain tendinitis was caused by scarring and inflammation resulting from the June 1997 injury.
The ALJ found the claimant failed to prove that he sustained a compensable occupational disease while employed at Ready’s. The ALJ found Dr. Boyer’s opinion was more credible than that of Dr. Carlson, and that Dr. Boyer’s opinion was corroborated by a written report of Dr. Labosky. The ALJ was also persuaded by evidence the claimant did not attempt to relate his symptoms to employment with Ready’s until after settling his claim against DFC.
I.
On review, the claimant first contends the ALJ erred in relying on Dr. Boyer’s opinion. In support of this proposition, the claimant points out that Dr. Boyer testified his opinion concerning causation was influenced by a conversation he had with Dr. Carlson, in which Dr. Carlson opined the claimant’s deQuervain tendinitis was a function of scarring caused by the crush injury. (Boyer Depo. p. 44). Under these circumstances, the claimant asserts that Dr. Boyer’s opinion is not entitled to any weight because it constitutes the “wholesale adoption of one doctor’s opinion by that of another doctor.” We reject this argument.
The claimant was required to prove that the alleged occupational disease was directly and proximately caused by the conditions of his employment at Ready’s. Section 8-40-201(14), C.R.S. 2000; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant proved the requisite causal relationship is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1163, May 11, 2000).
Because the issue is factual in nature, we must hold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Although expert medical opinion is not required to establish causation, where such evidence is offered its weight and credibility are matters exclusively within the discretion of the ALJ as fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the claimant asserts the ALJ erred in crediting Dr. Boyer’s opinion because it was based on his conversation with Dr. Carlson concerning causation, and Dr. Carlson subsequently changed his opinion. Initially, we note the claimant failed to raise any objection to consideration of Dr. Boyer’s testimony. Therefore, the claimant may not now assert that the opinion lacked adequate foundation for consideration by the ALJ. C.R.E. 103(a)(1) (error may not be predicated upon a ruling which admits evidence unless a timely objection or motion to strike appears of record).
In any event, we perceive no error in the ALJ’s reliance on Dr. Boyer’s opinion. C.R.E. 703 permits an expert witness to rely on information provided by other experts “because an expert cannot be an expert in all fields and can reasonably be expected to rely on the opinions of experts in other fields as background information for arriving at his own opinion.” Gold Rush Investments, Inc. v. G.E. Johnson Construction Co., Inc., 807 P.2d 1169, 1174 (Colo. 1990); see also Fenton v. Fireboard Corp., 827 P.2d 564 (Colo.App. 1991), set aside on other grounds, 845 P.2d 1168 (Colo. 1993). Read in its totality, Dr. Boyer’s deposition reveals he relied on Dr. Carlson’s opinion for the purpose of establishing that the prior surgery could form scar tissue which could result in deQuervain tendinitis. It was appropriate for Dr. Boyer, an expert in emergency and occupational medicine, to rely on a surgeon’s opinion on this issue. However, reliance on Dr. Carlson’s opinion was not the sole basis of Dr. Boyer’s opinion. Dr. Boyer, in his capacity as a practitioner of occupational medicine, established the restrictions under which the claimant returned to work, and was convinced the claimant’s duties would not aggravate his condition. Moreover, Dr. Boyer based his opinion on the claimant’s medical history, including the claimant’s failure to associate his symptoms with the his duties at Ready’s. Finally, Dr. Boyer testified he would not defer to Dr. Carlson on the issue of causation. (Boyer Depo. pp. 39-40, Boyer Report, February 10, 1999).
It follows this is not a case in which Dr. Boyer simply adopted the opinion of another expert and substituted it for his own. Further, Dr. Boyer was subject to cross-examination and the claimant was afforded ample opportunity to impeach Dr. Boyer’s testimony. Under these circumstances, it was for the ALJ to assess the weight to be assigned Dr. Boyer’s testimony, and we may not interfere with the ALJ’s decision. Rockwell International v. Turnbull, supra.
II.
The claimant next contends the ALJ erred in relying on Dr. Labosky’s report because there was no evidence that Dr. Labosky was aware of the type of work the claimant performed at Ready’s. However, Dr. Labosky’s report states the claimant returned to work “in a different job because of a weight lifting limit,” and contains the opinion the claimant’s “condition is not related to employment at Ready Ice.” Thus, the report contains evidence from which the ALJ could infer that Dr. Labosky was familiar with the claimant’s duties at Ready’s. If the claimant wished to negate this inference he could have deposed Dr. Labosky. However, the claimant did not conduct a deposition, and we decline to interfere with the ALJ’s plausible interpretation of Dr. Labosky’s report.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 3, 1999, 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. 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 September 25, 2000 to the following parties:
Shawn R. Wills, 1616 Chestnut, #16, Canon City, CO 81212
Ready’s Ice Company, Inc., Attn: David Miller, 2nd Water St., P.O. Box 1022, Canon City, CO 81212
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy