Opinion
W.C. No. 4-015-632
January 26, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed his claims for temporary disability and medical benefits. We affirm.
On April 3, 1991, the claimant sustained an admitted occupational disease from repetitive upper extremity activities performed as a butcher. As a result of the injury the claimant reported symptoms in his hands, fingers, forearm and elbow. After the injury the claimant discontinued work as a butcher and attempted to retrain himself. However, the claimant returned to work as a butcher in 1995. In October 1998, the claimant began complaining of right shoulder pain.
Dr. Labosky reported that x-rays of the claimant's right shoulder revealed a "very large acromial osteophyte." Dr. Labosky opined that the acromion is a Type II hooked acromion which is congenital and not work-related. Dr. Goldman diagnosed a right acromial spur with possible impingement and agreed with Dr. Labosky that the shoulder condition is not related to the claimant's 1991 occupational disease.
The claimant applied for a hearing and argued the right impingement syndrome is a compensable component of the 1991 disease. In support, the claimant offered Dr. Hall's opinion that the shoulder impingement is an extension of the overuse syndrome which began in 1991. (Tr. p. 39).
Expressly crediting the opinions of Dr. Goldman, the ALJ found the claimant failed to sustain his burden to prove a causal relationship between the shoulder impingement syndrome and the 1991 occupational disease. Instead, the ALJ determined the shoulder impingement is either due to a congenital condition or the claimant's employment since 1995. Therefore, the ALJ denied the claims for temporary disability and medical benefits.
On review the claimant contends the ALJ's findings of fact are insufficient to permit appellate review, the ALJ failed to resolve conflicts in the evidence and the ALJ erred in failing to find a causal relationship between the 1991 injury and the shoulder impingement. The claimant contends that from 1980 to 1991 his employment required repetitive use of the upper extremities above the shoulder, and Dr. Hall stated these repetitive activities could aggravate the Type II acromion hook to produce an impingement syndrome. The claimant also contends the ALJ erroneously credited the opinions of Dr. Goldman over the contrary opinions of Dr. Hall. We disagree.
The determination of whether the claimant's pain is the result of a new injury or the pre- existing condition is one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ's determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2000. Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Further, the ALJ findings may be inferences from circumstantial evidence . Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
In so doing, the ALJ is not held to a crystalline standard in articulating his factual determinations. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Rather, the ALJ's order is sufficient to support appellate review if the basis for the denial of benefits is apparent from the findings. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
We have no difficulty ascertaining the basis for the ALJ's order and, therefore, the ALJ's findings are sufficient to permit appellate review. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990). The issue before the ALJ for adjudication was whether the right impingement was a compensable component of the 1991 occupational disease. The ALJ was persuaded by Dr. Goldman's opinion that the shoulder impairment was either the natural progression of the congenital Type II acromion hook or the result of claimant's repetitive employment activities after 1995. Consequently, the ALJ did not determine whether the impingement syndrome is a second occupational disease.
We may not interfere with the ALJ's credibility determinations unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). We perceive no such extreme circumstances here.
The record reflects a direct conflict between Dr. Hall, Dr. Labosky and Dr. Goldman concerning the cause of the claimant's shoulder impairment. Within his sole prerogative, the ALJ resolved the conflict in favor of Dr. Goldman. See Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) (ALJ is the sole arbiter of conflicting medical evidence); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992)) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
Dr. Goldman's opinions are consistent with the records of Dr. Labosky. Dr. Goldman's opinions are buttressed by evidence the claimant did not report shoulder pain in 1992 when he was first examined by Dr. Hall and did not report shoulder pain in 1994 at the time Dr. Walker placed the claimant at maximum medical improvement. Consequently, we cannot say the ALJ erred as a matter of law in crediting the opinions of Dr. Goldman. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Furthermore, the ALJ is not required to explain the basis for his credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987).
The claimant's further arguments challenging Dr. Goldman's opinions go the weight of his opinions. However, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence, and decline the claimant's request to do so. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Finally, we reject the claimant's contention that the ALJ's finding of a congenital cause for the claimant's condition is inconsistent with the full responsibility rule. Again, the ALJ did not reject the notion that the claimant suffered an occupational disease from the aggravation of his pre-existing acromion hook. Rather, the ALJ merely rejected the contention that the claimant's shoulder impingement was a natural and proximate result of the occupational disease which began in 1991. See Standard Metals Corp.v. Ball, 172 Colo. 510, 474 P.2d 622(1970).
The claimant's further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated February 24, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 26, 2001 to the following parties:
Ruben Melendez, 1134 Richards Ave., Colorado Springs, CO 80906
Circle Supermarket, 1134 Richards Ave., Colorado Springs, CO 80906-3531
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484 (For Claimant)
Richard Lamphere, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
BY: A. Pendroy