W.C. No. 4-767-485.Industrial Claim Appeals Office.
September 24, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 12, 2009, that denied and dismissed the claimant’s claim for workers’ compensation benefits. We affirm.
The claimant worked a long shift on June 18, 2008. On June 19, 2008, the claimant woke up with a sore neck. The claimant saw a physician’s assistant on August 4, 2008 who noted that the claimant had developed cervical radiculitis that worsened with extension of the neck and working with his hand above his head even though he has been off work for the last 7-10 days. After discussing his condition with the physician’s assistant, the claimant decided his neck condition was work-related and reported his claim to his manager. The claimant was seen by Dr. Purvis who referred the claimant for a cervical MRI, which revealed degenerative disc disease in the claimant’s cervical spine and a disc herniation affecting the right C7 nerve root. Dr. Scott, the respondent’s medical expert, testified that the claimant’s MRI demonstrated preexisting degenerative changes and that the claimant had a preexisting, progressive, underlying degenerative disease process in his cervical spine. The ALJ determined that the claimant failed to show it more probably true than not that his work activities at the employer, caused, aggravated, or to a reasonable degree, accelerated the underlying disease process in his neck, resulting in disc herniation.
The claimant bring this appeal contending that the ALJ erred as a matter of fact and law in ruling that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable occupational disease type injury or aggravation to his neck and right shoulder as a result of his work activities. The claimant argues that substantial
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evidence establishes the claimant’s cervical spine and right shoulder were asymptomatic until he worked a strenuous shift on the evening of June 18, 2008 and awoke with a sore and stiff neck on June 19, 2008.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). A claimant seeking benefits for an occupational disease must establish the existence of the disease and that it was directly and proximately caused by the claimant’s employment or working conditions.” Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251, 252 (Colo. App. 1999); see also, § 8-40-201(14), C.R.S. 2009 (defining occupational disease).
Proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. Section 8-43-201, C.R.S. 2009; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant has proven a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Here the ALJ credited the testimony of the respondents’ medical expert over the testimony of the authorized treating physician. However, we are bound by the ALJ’s factual determinations, even when the evidence is conflicting and would have supported a contrary result. Cary v. Chevron U.S.A., Inc., 867 P.2d 117, 119 (Colo. App. 1993).
The claimant essentially asks us to reweigh the evidence to reach a finding contrary to the ALJ’s conclusion, arguing that the opinions of Dr. Purvis and Dr. Fox substantially support a determination that the claimant suffered a work related injury. We may not reevaluate the evidence. See Metro Moving Storage, 914 P.2d at 415. On the contrary, we must uphold the decision where, as here, substantial evidence supports the ALJ’s determination.
Further, adopting claimant’s analysis would require us to accept the opinion of the treating physicians over that of the medical expert for the respondents, and, thus, to reject the ALJ’s analysis of the credibility of the witnesses in this case. However, “we may not interfere with the ALJ’s credibility determinations except in the extreme circumstance
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where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it.” Arenas v. Industrial Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Nor may we interfere with the ALJ’s assessment of an expert witness’s testimony because where, “as here, expert testimony is presented, the weight to be accorded . . . the testimony is a matter exclusively within the discretion of the [ALJ] as fact-finder.” Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990). Although the treating physicians expressed opinions contrary to that of Dr. Scott, their opinions are insufficient to overwhelmingly rebut Dr. Scott’s testimony and conclusions.
Here, Dr. Scott testified that it was medically improbable that the claimant’s neck and right shoulder conditions were caused or aggravated by his work at the employer. Scott Depo. at 7-8; Exhibit C at 7-9. Dr. Scott opined that by history there was no specific injury or traumatic event at the employer’s workplace that would account for the claimant’s condition. Scott Depo. at 8: Exhibit C at 3. Dr. Scott further opined that the history in the claimant’s medical records fails to connect causally his neck and right shoulder condition to his work for the employer. Scott Depo. at 8; Exhibit C at 6. Dr. Scott explained that it was medically probable that had the claimant sustained the disc herniation injury to his neck at work, the claimant would have experienced significant contemporaneous pain and functional compromise. Scott Depo. at 11, 14. Dr. Scott explained that the lack of any neck or right shoulder pain or symptoms during the time the claimant worked for the employer from December 3, 2007 through June 18, 2008 supports his opinion that the claimant’s work neither caused nor aggravated his neck or right shoulder condition. Scott Depo. at 13. Dr. Scott indicated that it is common for individuals to awaken with neck pain after sleeping at night. Scott Depo. at 9-11. According to Dr. Scott, the neck pain the claimant awoke to on June 19, 2008 is typical for cervical disc syndrome, which results from sleeping with the neck in a fixed position. Scott Depo. at 9. The ALJ inferred that cervical disc syndrome is the more probable explanation of the cause of the claimant’s disc herniation and right-sided shoulder pain. In our view, this is a plausible inference drawn from the record.
In addition, the ALJ made the following relevant findings of facts, which appear to be uncontested. The claimant worked some seven months for the employer without experiencing any neck or right shoulder symptoms before awaking at home with those symptoms on the morning of June 19, 2008. The claimant was symptom free following his shift on June 18, 2008. The claimant’s symptoms occurred at home when he awoke on the morning of June 19, 2008 and not while performing activities at work. The claimant’s onset of symptoms of his disc herniation thus occurred at home, and not at work. Even the claimant initially expressed sleeping posture as the cause of his neck pain when he told his employer on June 23, 2008, that he slept incorrectly. In our view, these facts constitute further substantial evidence supporting the ALJ’s determination to credit
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Dr. Scott’s medical opinion in finding that the claimant had an underlying, progressive, disease process in his cervical spine that eventually resulted in the disc herniation affecting the C-7 nerve root.
The claimant next argues that part of the basis of the determination by the ALJ was the surveillance evidence and that the ALJ erroneously relied on this evidence. The claimant contends that the surveillance video contains time discrepancies and that scenes had been edited. The ALJ made the following findings of fact regarding the video surveillance of the claimant conducted in October 2008. The claimant loaded a car and camper in preparation for a camping trip, bending at the waist both inside and outside his car, chopping wood with his right arm, jumping up and down on a large log, walking and sitting. In our view, regardless of any alleged time discrepancies the surveillance tape on its face supports the ALJ’s interpretation. Exhibit H.
The claimant argues that the surveillance is not credible because parts of it were edited and this could cause the activity on the screen to appear to be done at a more vigorous rate than the activity actually occurred. Here, the investigator was subject to cross-examination at the hearing. The ALJ was obviously not persuaded that the surveillance video was unreliable. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the surveillance tape. See Frisby v. Anheuser Busch Companies Inc., W. C. No. 4-401-701 (July 27, 2001).
The claimant argues that the surveillance video was inadmissible as it was not relevant to the determination of compensability because it was taken nearly four months after the claimant’s date of injury. However, the claimant made no objection on the grounds of relevancy to the introduction of the surveillance tapes into evidence. Tr. at 142. Under the Colorado Rules of Evidence, before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1) see also, § 8-43-210, C.R.S. 2009 (rules of evidence apply in workers’ compensation proceedings); Gallegos v. B M Roofing, W.C. 3-962-465 (January 25, 1991). Further, the claimant’s activities captured on the surveillance tape may be viewed as relevant to the claimant’s credibility. We perceive no reversible error in the ALJ’s consideration of the video.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 12, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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JAMES HOWDEN, PAONIA, CO, (Claimant).
CHACO, INC., PAONIA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
KILLIAN, JENSEN DAVIS, PC, Attn: CHRISTOPHER H RICHTER, ESQ./JOANNA C JENSEN, ESQ., GRAND JUNCTION, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: STEPHANIE NICHOLS, DENVER, CO, (Other Party).
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