W.C. No. 4-780-637.Industrial Claim Appeals Office.
April 30, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated December 4, 2009, that ordered the respondents to pay for specific medical care and treatment provided at Kaiser for the claimant’s right ankle injury. We affirm.
The claimant sustained an admitted back injury on December 11, 2009. The ALJ made the following findings of fact related to a second accident. On May 27, 2009, the claimant fell in the parking lot of an authorized physician when she felt pain in her lower back, which radiated into her right leg. The claimant’s right leg gave out, which caused her to fall injuring her right ankle. The authorized provider refused to treat the claimant’s right ankle injury for non-medical reasons and referred her to her primary care physician at Kaiser. The claimant underwent an x-ray at Kaiser and her right ankle was placed in a cast. The ALJ found that the claimant’s right ankle injury on May 27, 2009 was a compensable consequence stemming from the underlying admitted injury. The ALJ ordered the respondents to pay pursuant to the fee schedule for the reasonable and necessary medical care and treatment provided by Kaiser for the right ankle injury.
On appeal, the respondents contend that the ALJ’s findings are not supported by the evidence. The respondents point out that the only records from Kaiser reference a May 21, 2009 visit. The respondents argue that this would be for a visit six days prior to the May 27, 2009 accident. Exhibit 2. Therefore, respondents contend that there is no support for the ALJ’s award of medical benefits for treatment of the claimant’s ankle injury at Kaiser.
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We note that on appeal the respondents do not question the rationale for compensability of the subsequent injury as resulting from the weakened condition caused by her original back injury. Rather the respondents contend that upholding the ALJ’s finding based solely on the testimony of the claimant would not be supportable by the actual evidence and would contradict reason and logic. We are not persuaded to interfere with the ALJ’s order.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her right ankle injury arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S.; 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. 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).
We recognize that the ALJ has ordered the respondents to pay for the medical care and treatment provided by Kaiser for the May 27, 2009 right ankle injury and that the only Kaiser records submitted are for a date of service before the May 27, 2009 accident. However, causation need not be proven by medical evidence. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo. App. 1986). To the contrary, the claimant’s testimony, if credited, may be sufficient to establish the requisite nexus between the industrial injury and the need for medical benefits. Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983).
Here the ALJ credited the claimant’s testimony. The claimant’s testimony supports the ALJ’s determination. Tr. at 16-19. Moreover, there is support in the medical record for a finding that the claimant suffered a fall in the parking lot and suffered an ankle fracture, which required casting. Exhibit 5 at 1; Exhibit 3 at 1 4. In our view there is substantial evidence supporting the ALJ’s determination. Therefore, we must uphold that determination. Section 8-43-301(8), C.R.S.
Here the ALJ ordered the respondents to pay the reasonable and necessary medical care and treatment provided by Kaiser for the right ankle injury. The ALJ reserved all matters not determined by the order for future determination. The ALJ limited the award to reasonable and necessary medical care and treatment provided by Kaiser for the right ankle injury. The bills are subject to the employer’s right to contest compensability,
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reasonableness, or necessity. See Hanna v. Print Expediters Inc., 77 P.3d 863, 866 (Colo. App. 2003); see also Martin v. Cobre Tire/ Bridgestone Firestone W. C. No. 4-453-804 (October 4, 2004) (the respondents always have the right to challenge the reasonableness and relatedness of ongoing medical treatment). In our opinion, the right of contest would include the service evidenced in the only record submitted by the claimant from Kaiser, which appears to relate to a visit prior to the accident in question.
IT IS THEREFORE ORDERED that the ALJ’s order issued December 4, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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JENNIFER L KINNEY, NORTHGLENN, CO, (Claimant).
DAVITA-FOLSON DR., BOULDER, CO, (Employer).
BROADSPIRE SERVICES, INC., Attn: SANDRA O’BRIEN, DENVER, CO, (Insurer).
LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL D. O’TOOLE, ESQ., DENVER, CO, (For Claimant).
TREECE, SLFREY, MUSAT BOSWORTH, PC, Attn: JAMES B. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).