W.C. No. 4-709-613.Industrial Claim Appeals Office.
August 21, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated April 16, 2009 that denied her claim for benefits. We affirm.
The ALJ’s findings of fact are summarized as follows. The claimant filed a claim for benefits on October 12, 2007, indicating that her left knee was irritated because of walking more than usual while working under restrictions. The ALJ credited this account of her injury, rather than the claimant’s subsequent explanation that on May 30, 2006 she pushed a stack of boxes with her left leg and felt pain in her leg. The ALJ also credited her account to Dr. Maisel that she had no known injury, but incurred pain after lifting boxes repetitively, as well as her corresponding account provided to Dr. Baer regarding lifting heavy boxes. The claimant received medical care, including a partial knee replacement. Ultimately, the claimant received treatment for the infrapatellar branch of her saphenous nerve as recommended by Dr. Simonich. The claimant reported to Dr. Richman that she used her left leg to push a stack of empty and flattened boxes and had a sudden onset of inner knee pain. Dr. Richman opined that the claimant sustained a work-related injury to her saphenous nerve, which he considered to be a rare, isolated injury. However, the ALJ found the opinions of Drs. Simonich and Roth to be more persuasive. Dr. Roth determined that pushing boxes with her left foot did not provide an opportunity for direct trauma to the nerve and he could not conclude that the claimant’s saphenous nerve neuroma was work-related. Regarding the opinions of Dr. Simonich, the ALJ found that he was the claimant’s “own treating physician” and that he indicated he did not know how her neuroma could be attributed to the mechanism of injury described by the claimant. Furthermore, Dr. Simonich considered whether secondary gain was an issue in light of the claimant’s failure to report significant improvement after excision of
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the neuroma on June 25, 2008 until a “sudden recovery” on July 17, 2008. The ALJ found that the claimant failed to establish a work-related injury to her left knee and denied her claim for benefits.
The claimant asserts on appeal that the ALJ mischaracterized Dr. Simonich’s medical opinions concerning the relatedness of her injury to her work. In support of her contention, the claimant notes that Dr. Simonich opined repeatedly that the claimant’s condition is work-related. We are not persuaded that the ALJ erred in rendering his findings and conclusions.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her left knee injury arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue 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. 2009. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
The ALJ must assess the weight and credibility of expert medical testimony pertaining to the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). Furthermore, the ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Moreover, we may not reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo. App. 1994). Consequently, the existence of conflicting testimony or evidence that would support a contrary result does not provide a basis for setting aside the order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999). See also, Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion).
The claimant refers to the following written statement by Dr Simonich: “I don’t believe this is post surgical in nature and I am not sure how it could be attributed to the mechanism of injury she described but this seems to be her working diagnosis.” Exhibit 8 at 162. According to the claimant, the ALJ left out “the last clause wherein he attributes
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her symptoms to the mechanism of injury at work.” Claimant’s Brief at 6. The ALJ made the following corresponding finding: “Dr. Simonich also noted that he didn’t believe the neuroma was post surgical in nature, but was not sure how it could be attributed to the mechanism of injury Claimant described.” Findings of Fact, ¶ 12. The ALJ also found that the claimant reported to Dr. Simonich that she sustained a work-related injury “while kicking a box with her left knee. . . .” Findings of Fact, ¶ 10. However, the ALJ did not credit that version of the claimant’s purported cause of injury. Findings of Fact, ¶ 17.
The claimant also refers to Dr. Simonich’s notes indicating that the claimant continued to have “anteromedial left knee pain from a work related injury 2 yr ago which seems to be consistent with neuroma in continuity of the infrapatellar branch of the saphenous nerve after differential injection gave her 100% relief.” Exhibit 8 at 161. In addition, the claimant observes that Dr. Simonich noted he was seeing the claimant “prior to neuroma excision to the infrapatellar branch of the saphenous nerve which occurred as a result of a work related injury which has taken a great deal of time to diagnose and offer trmt.” Exhibit 8 at 156. The claimant further observes that the ALJ failed to refer to these statements in his findings. However, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). To the extent that the evidence from Dr. Simonich was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). It is apparent that the ALJ did not find Dr. Simonich to opine unequivocally that the claimant’s injury was work-related, as demonstrated by the portions of his opinions that the ALJ found to be persuasive. We find no basis for granting relief on review and, therefore, decline to disturb the ALJ’s decision.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 16, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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KATHLEEN BARELA, 1736 EAST 3RD ST, PUEBLO, CO, (Claimant).
TARGET DISTRIBUTION CENTER, Attn: MARK STEVENS, PUEBLO, CO, (Employer).
SEDGWICK CMS, Attn: MARTHA PRESTON, RICHARDSON, TX, (Insurer).
SCHIFF SCHIFF PC, Attn: HERBERT S. SCHIFF, ESQ., PUEBLO, CO, (For Claimant).
BLACKMAN LEVINE, LLC, Attn: LAWRENCE D BLACKMAN ESQ, DENVER, CO, (For Respondents).
SEDGWICK CMS, Attn: ALPHA MANNING, LEXINGTON, KY, (Other Party).
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