W.C. No. 4-697-782.Industrial Claim Appeals Office.
September 21, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated May 9, 2007 that denied and dismissed the claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant at the time of hearing was 46 years old. When the claimant was a teenager he suffered two crushed vertebra while wrestling with his brother. He was placed in a back brace for nine months and recovered. Over the years the claimant had periodic episodes of low back pain for which he sought treatment, including in 1973 when he was injured playing softball. He had additional episodes of low back pain in 1980, 1986, 1989, 1996, and 2003. In April 2003, he awoke with severe low back pain and spasms after spending the weekend cutting trees. On February 7, 2004, the claimant had another episode of low back pain and right sciatica.
In 2005 the claimant began work for the employer in a warehouse, which involved loading and unloading racks of oxygen bottles, pushing wheeled racks weighing 400 to 500 pounds, lifting and cleaning concentrators weighing 53 pounds, and lifting liquid units that weighed in excess of 100 pounds, with the assistance of co-workers. The claimant alleges that four to five months after commencing such employment, he began to suffer low back pain and pain in both legs. The claimant sought treatment from Dr. Reedy who diagnosed sciatica and referred the claimant to Dr. Laub. Dr. Laub performed a percutaneous disectomy and noted that the claimant understood that if he
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wanted to pursue a workers’ compensation claim, he would need to do that at his place of work. Dr. Fall performed an independent medical examination for the respondents. Dr. Fall noted that the claimant had suffered an insidious onset of low back pain without any trauma in 2004 and probably suffered the same problem in 2005 and 2006. Dr. Fall noted that no objective evidence existed to link the claimant’s work activities to aggravation of the degenerative disc disease. Dr. Fall also concluded that work did not cause even a temporary aggravation of the claimant’s disease.
The ALJ found that the preponderance of the evidence demonstrated the claimant had not suffered an occupational disease in the form of an aggravation of his preexisting lumbar degenerative disc disease. The ALJ found that the opinions of Dr. Fall were credible and persuasive and the claimant had provided no expert evidence of medical causation to contradict the opinions of Dr. Fall. The ALJ denied and dismissed the claimant’s claim for compensation.
I.
On appeal the claimant contends the ALJ misapprehended the law in thinking that the claimant was obligated to present a medical opinion establishing causation. The claimant notes the ALJ found that, “Claimant has provided no medical causation opinion to contradict the opinions of Dr. Fall.” Findings of Fact, Conclusions of Law, and Order at 2 ¶ 14. The claimant argues that from this finding it is obvious the ALJ thought the claimant was obligated to present a medical opinion supporting a causal connection between the claimed disease and his work. We disagree.
We agree that the claimant was not required to present medical evidence to establish causation in this occupational disease case Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) Hungerford-Courtaway v. Eagle Picher W. C. No. 4-257-897 (February 14, 1997). But we read this section of the ALJ’s order as merely summarizing a portion of the relevant evidence. We do not read the ALJ’s order as articulating a requirement that the claim of an occupational disease be supported by the opinion of a physician. The ALJ’s dismissal of the claim was not based solely on the lack of a medical report from the claimant supporting his theory of the case. The ALJ also made findings of fact based on the claimant’s testimony including the physical requirements of his job and his symptoms. Findings of Fact at 2 ¶ 4-5. Further the ALJ considered other evidence relevant to the existence of an occupational disease such as the medical history contained in reports from the claimant’s treating physicians. Findings of Fact, at 2, ¶ 6-12.
The ALJ noted the statutory definition of occupational disease and cited relevant case law. Conclusions of Law at 4, ¶ 2. The ALJ then determined that the claimant had failed to prove by a preponderance of the evidence that he suffered an occupational disease to his lumbar spine resulting directly from the employment or conditions under
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which work was performed and following as a natural incident of the work. Conclusions of Law at 4, ¶ 2. It is clear from this portion of the order that the ALJ applied the proper legal standard. In our view the finding by the ALJ that the claimant had not provided a medical opinion to contradict the opinions of Dr Fall is a factual finding supported by the record and does not indicate a misapprehension of the law. Rather, the ALJ merely considered this lack of competing expert evidence in weighing the complete record and in concluding that the claimant failed to carry his burden of showing a compensable disease. The ALJ was certainly entitled to consider the lack of an expert opinion that the claimant’s work had caused his condition as one factor. However, as we read the order, he correctly applied the relevant legal standard.
II.
The claimant next argues that the respondents did not prove an alternative cause of the claimant’s flare up because, although Dr. Fall testified that the flare up was not caused by the claimant’s work he did not state what the cause was. The claimant argues that under Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992) the respondents must prove a non-industrial cause of the injury. In our view the claimant’s reliance on Cowin Co. v. Medina, supra. is misplaced.
In Cowin Co. v. Medina, supra, the court held that if the claimant proves the conditions of employment have proximately caused or aggravated a disease, the burden of showing the existence and extent of other causes necessary to defeat the claim or for purposes of apportionment falls on the respondent. See Bodine v. American Appliances W.C. No. 4-653-473 (June 7, 2006). Here the ALJ found that the claimant had failed to prove by a preponderance of the evidence that he suffered an occupational disease to the lumbar spine resulting directly from the employment or conditions under which work was performed and following as a natural incident of the work. Therefore, having failed to establish that the hazards of employment caused, intensified or aggravated a pre-existing disease process the burden never shifted to the respondents to establish the existence of non-industrial causes. See Vigil v. Holnam W.C. Nos. 4-435-795 4-530-490 (August 31, 2005); Holmes v. Morgan County W.C. Nos. 4-527-829 4-554-366 (January 21, 2005).
III.
The claimant next contends that the ALJ erred by “interpreting the facts liberally in favor of the respondents.” We disagree. The ALJ noted in his order that § 8-43-201 C.R.S. 2007, provides that the facts in a workers’ compensation case shall not be interpreted liberally in favor of either the rights of the injured worked or the rights of the employer. Conclusions of Law at 4, ¶ 1.
The claimant reiterates that no other cause of the aggravation was offered by the respondents and argues that it is therefore impossible to conclude that the lifting the
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claimant did at work did not intensify or aggravate the preexisting condition. We are unpersuaded that the factual record here compelled the ALJ to reach that conclusion.
As noted, where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). It is true that if an industrial injury aggravates or accelerates a pre-existing non-industrial condition so as to cause a need for treatment, the claimant has sustained a compensable injury and respondents are liable for treatment caused by the aggravation. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999
(Colo.App. 2004); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, when a claimant experiences symptoms while at work it is for the ALJ to determine whether any subsequent need for treatment was caused by an industrial aggravation of a pre-existing condition or by the natural progression of the pre-existing condition. The mere experience of symptoms at work does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Resolution of that issue is also one of fact for the ALJ F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here the ALJ noted the claimant had periodic episodes of low back pain for which he sought treatment starting in 1973. Tr. 30-37, Exhibit A at 2-3, Exhibit D at 36. The ALJ relied in part on the opinion of Dr. Fall who found no objective evidence existed to link the claimant’s work activities to aggravation of his degenerative disc disease. Dr. Fall concluded that the claimant’s work did not cause even an aggravation of the disease and instead the claimant’s condition was a natural progression of his preexisting condition. Exhibit 3 at 4; Tr. at 57 71 74 77. The ALJ found that the opinions of Dr. Fall were credible and persuasive.
The question of whether the claimant sustained his initial burden of proof is a question of fact for resolution by the ALJ, and therefore, the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Under this standard it is the ALJ’s sole prerogative to assess the credibility of the witnesses and the probative value of the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). We perceive no basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 9, 2007 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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BRIAN WOODLEE, Attn: WILLIAM A. ALEXANDER, JR., COLO SPGS, CO, (Claimant).
ROTECH HEALTHCARE, INC., WALSENBURG, CO, (Employer).
ACE AMERICAN INSURANCE CO, PORTLAND, OR, (Insurer).
ALEXANDER RICCI, P.C., Attn: WILLIAM A. ALEXANDER, JR., COLO SPGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: ERICA A. WEBER, DENVER, CO, (For Respondents).
ESIS PORTLAND WC CLAIMS, Attn: SANDRA SHEFMAN, TAMPA, FL, (Other Party).