Temporary aggravations of preexisting conditions are compensable. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981); see also Diaz v. Intertape Polymer Group. April 24, 2008, W.C. No. 4-704-673. It does not appear that the respondents even contest that the initial medical treatment the claimant received was reasonable and necessary and thus some benefits under the act were due as a consequence of the March 4, 2005 incident. In our opinion, this alone would support a determination of compensability.
The ALJ has broad discretion in assessing the weight and sufficiency of the evidence to determine whether this burden has been satisfied. See Sena v. World of Sleep, 173 Colo. 348, 478 P.2d 671 (1970); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981); Castro v. U.S. Transfer Storage, W.C. 3-849-678 (March 8, 1989). Here, the ALJ made the following findings of fact.
We do not dispute the claimant's legal argument that temporary aggravations of preexisting conditions are compensable. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Moreover, the "substantial permanent aggravation" language of § 8-41-304(1), C.R.S. 2007, applies only when there is a dispute concerning which of multiple employers or insurers is liable for an occupational disease.
The claimant's contention regarding the absence of a formal FCE concerns the weight to be afforded the expert's opinion, a matter within the ALJ's discretion. See Rockwell International v. Turnbull, supra; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Contrary to the claimant's argument, the ALJ was not compelled to find this expert's opinion unpersuasive.
However, it was within the ALJ's discretion to interpret the evidence so long as his findings are supported by competent evidence. See Eastman Kodak Co. v. Industrial Commission, 725 P.2d 85, 87 (Colo.App. 1986), citing Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). In rejecting the claim that medical benefits should be apportioned, the ALJ found that there was "no persuasive medical or scientific evidence that established Claimant's need for medical treatment was caused by his prior industrial injury or a presumptive non-industrial condition.
The question of whether the claimant met the burden to prove the worsening of condition caused additional temporary impairment of his earning capacity, which would entitle him to TTD benefits was one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record.
Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The question of whether a party bearing the burden of proof has sustained the burden is itself a question of fact. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Here, the record supports the ALJ's determination that the respondents failed to establish the defense provided by § 8-42-105(3)(d)(I).
The question of whether the claimant met the burden of proof to establish causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, supra; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). We must uphold the ALJ's determination if supported by substantial evidence.
The determination of whether an employer has sustained this burden of proof was a question of fact for resolution by the ALJ. See Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Consequently, we are bound by the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record.
The question of whether the claimant met the burden to prove the worsening of condition caused additional temporary impairment of her earning capacity, which would entitle her to TPD benefits under the formula established in § 8-42-106(1), was one of fact for determination by the ALJ. Lymburn v. Symbios Logic, supra; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981); Lively v. Digital Equipment Corp., supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record.