Opinion
W.C. No. 4-824-963.
October 3, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated March 25, 2011, to the extent that the ALJ determined the claimant did not sustain a compensable injury on May 13, 2010, and denied medical benefits after that date. We affirm.
The claimant sought an order determining that he sustained compensable injuries on both May 11 and 13, 2010. The claimant also sought medical benefits for emergency room care on May 11 and 12, 2010, together with temporary disability benefits and medical care received on and after May 13, 2010. The ALJ found that the claimant sustained a compensable injury only on May 11, 2010 and ordered the respondents to pay for care the claimant received at an emergency room on May 11 and 12, 2010. The ALJ denied the claimant any other relief.
According to the ALJ's findings the claimant previously sustained extensive injuries to his left lower extremity in January 2009 while working for the respondent employer. The claimant's injuries required orthopedic surgery. In February 2009 the claimant was diagnosed with a deep infection, which was treated. He was released to work without restrictions and returned to work for the employer in September 2009. The claimant had no symptoms of infection after returning to work and his infectious disease doctor, Dr. Gill, released the claimant from her care in July 2009. The claimant received a full and final settlement offer of the claim.
On January 18, 2010, one of the claimant's orthopedic surgeons saw him and noted the claimant was back at work performing full duty and doing well. The physician did not recommend that the hardware in the claimant's left lower extremity be removed. The claimant worked the first five months of 2010 and had no signs of infection.
On May 11, 2010, the claimant fell off a ladder and landed first on his right foot and then impacted his previously injured left ankle. The claimant went to the emergency room on May 11, 2010, with a swollen and bruised left ankle, but without any evidence of infection. The ALJ considered the treatment the claimant received there to be emergency care to evaluate and determine whether treatment was reasonably needed for the incident on May 11, 2010.
On May 12, 2011, the hospital advised the claimant to follow up with his orthopedic surgeon and the infectious disease doctor because the radiologist indicated the possibility of osteomylitis. The claimant made an appointment with Dr. Hahn for the afternoon of May 13, 2009. Before then on May 13 the claimant was driving from the office to a work site and drove off the road to avoid another vehicle. The claimant's body banged around the truck and the claimant received bruises from his seat belt. Dr. Hahn examined the claimant later that day. He found the claimant's left ankle and heel areas to be very swollen, but did not detect any infection. Nonetheless, Dr. Hahn consulted with Dr. Gill, who recommended delaying the use of antibiotics. The claimant made another appointment to see Dr. Hahn on Monday, May 17, 2010.
The claimant missed his follow-up appointment with Dr. Hahn and, instead, ended up going to the hospital suffering from several maladies, including delirium and pain. Dr. Hahn suspected infection and performed emergency surgery on the claimant's foot to remove hardware and debride infected areas. Dr. Hahn discovered significant infection, loss of bone due to osteomyelitis, and several broken screws consistent with a trauma to the foot. The claimant also had abscesses in his neck and lumbar regions and infection in various portions of his body.
The ALJ credited the medical opinions of Dr. Jacobs. Dr. Jacobs opined that none of the claimant's issues diagnosed and treated at the hospital from May 18 forward were related to incidents on May 11 or May 13. According to Dr. Jacobs the claimant is a high risk for the return of an infection and has bacteria residing on metal surfaces in his extremity that sought places to grow in his body. Dr. Jacobs explained that the claimant's infection was long-standing and could not have occurred so soon after the alleged incident on May 11, 2010. He further testified that assuming the claimant's testimony as to what occurred on May 11, 2010 is accurate, the claimant's need for medial treatment, his diagnoses, and his disability would have happened regardless of any incident on May 11 or May 13, 2010. The ALJ also found that on or after May 10, 2010, the claimant did not receive any medical treatment for any left ankle sprain, strain, or acute injury.
The ALJ determined that the claimant sustained a compensable injury only on May 11, 2010, and ordered the respondents to pay for his treatment at the emergency room on May 11 and 12, 2010. The ALJ denied the claimant's claim based on an injury on May 13, 2010 and further determined that the respondents were not responsible for the claimant's medical treatment after May 12, 2010. The ALJ also denied the claimant's request for temporary disability benefits.
The claimant argues that the ALJ erred by determining that his need for medical treatment after May 12, 2011 was not compensable. He further argues that the ALJ should have found his driving incident on May 13, 2011 to constitute a compensable injury. In support of his contentions the claimant asserts that infection in his body was essentially asymptomatic until he experienced traumatic events on May 11 and 13, 2010. We find no reversible error.
Section 8-42-101(1)(a), C.R.S. requires an employer to furnish reasonable and necessary medical treatment "to cure and relieve the employee from the effects of the injury." See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188 (Colo. App. 2002). The claimant has the burden of proving entitlement to specific medical benefits. See § 8-43-201(1), C.R.S; Lutz v. Industrial Claim Appeals Office, 24 P.3d 29, 31 (Colo. App. 2000).
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his condition arose out of and in the course of his 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 his 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
The ALJ made findings recognizing the extensive infections throughout the claimant's body and related complications that required extensive medical care following the claimant's hospitalization after falling at work and driving off a road. In addition, Dr. Hahn, who had treated the claimant and performed emergency surgery on the claimant, opined that the claimant's accident of May 11 caused infection to recur. Exhibit 21; Tr. at 242. The ALJ, however, expressly rejected Dr. Hahn's opinions as unpersuasive.
Instead, the ALJ credited the opinions of Dr. Jacobs. Dr. Jacobs testified that the claimant's infection, more likely than not, would have led to the same symptoms without the incident on May 11th. Tr. at 142-43. He disagreed with Dr. Hahn that the claimant's left ankle sprain caused the claimant's osetomyelitis to come out of dormancy. Tr. at 164. Dr. Jacobs testified at length as to how the claimant's infection was longstanding and symptomatic. The ALJ was therefore persuaded that the claimant's need for medical treatment and any disability would have occurred when and as they did without the May incidents.
The claimant's arguments regarding the quality of the evidence and the weight the ALJ afforded to the opinions of various doctors provide no basis for relief. It is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment by reweighing the evidence in an attempt to reach inferences different from those the ALJ drew from the evidence. See Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony). There is record support for the ALJ's findings. Under the circumstances, we find no basis for disturbing the ALJ's decision.
IT IS THEREFORE ORDERED that the ALJ's order dated March 25, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Brandee DeFalco-Galvin
HUGH SCHICKEL, P O BOX 7428, DENVER, CO, (Claimant).
NEWFLOWER MARKET, INC., Attn: SHARON NELSON, C/O: DBA SUNFLOWER FARMERS MARKET, BOULDER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY FLEWELLING, ESQ., DENVER, CO, (Insurer).
NATHAN, BREMER, DUMM MYERS, PC, Attn: KAREN WELLS, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CRAIG R. ANDERSON, ESQ., LAKE PLAZA DRIVE, SUITE D, COLORADO SPRINGS, CO, (For Respondents).
HUGH SCHICKEL, DENVER, CO, (Other Party).