Opinion
W.C. No. 4-207-704
June 26, 1996
ORDER OF REMAND
The respondent seeks review of an order of Administrative Law Judge Erickson (ALJ) which determined that the claimant sustained an occupational disease arising out of and in the course of his employment for the respondent, and awarded benefits. We set aside the order and remand for entry of a new order.
The ALJ found that the claimant suffered a compensable injury to his upper extremities which was diagnosed as bilateral carpal tunnel syndrome. In so doing the ALJ credited the claimant's testimony that his employment duties as a water sampler required repetitive use of his upper extremities. The ALJ also found that, as a result of the occupational disease, the claimant began losing time from work in late December 1993.
On review, the respondent contends, inter alia, that the ALJ's findings of fact concerning the claimant's job activities between September and December 1993 are not supported by substantial evidence in the record. Specifically, the respondent contests the ALJ's finding that, "[T]he Claimant's testimony, which was unrebutted, indicated that his activity involved repetitive use of his upper extremities." The respondent argues that the claimant's testimony was "rebutted" by Dr. Sorenson and Dr. Bernton. We conclude that additional findings of fact are necessary.
As argued by the respondent, Dr. Bernton issued a report dated November 14, 1995, in which he stated his opinion that the claimant's "primary job did not involve repetitive activities." Dr. Bernton also indicated that the claimant was "not doing highly repetitive bilateral work" or "the type of repetitive activity which would predispose one to carpal tunnel syndrome."
Dr. Sorenson testified that as described by the claimant, the claimant's job duties did "not sound like a highly repetitive activity." (Tr. p. 52). Dr. Sorenson also stated that the claimant's job activities through December 1993, were "not particularly repetitive." (Tr. p. 68).
Based upon this evidence, we agree with the respondent that the record contains some evidence which is contrary to the claimant's testimony that his employment activities required repetitive use of the upper extremities. Therefore, the record does not support the ALJ's finding that the claimant's testimony concerning the repetitive nature of his job duties was "unrebutted."
Moreover, the ALJ did not make any specific findings concerning this medical evidence, and we cannot presume that the ALJ found this evidence incredible. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of no evidence may not be converted to a finding of no credible evidence). Consequently, the ALJ's findings are insufficient for us to ascertain how the ALJ would have assessed the claimant's credibility had he recognized the conflict in the evidence concerning whether the claimant's job duties required repetitive use of the upper extremities.
Accordingly, the matter must be remanded to the ALJ for additional findings of fact which resolve the conflict in the evidence. However, in remanding the matter we should not be understood as expressing any opinion concerning the credibility or probative value of the medical evidence from Dr. Sorenson and Dr. Bernton. These are issues for resolution by the ALJ. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
In view of our disposition, it is premature to consider the respondent's remaining contentions of error.
IT IS THEREFORE ORDERED that the ALJ's order dated August 3, 1995, is set aside and the matter is remanded to the ALJ for further findings of fact and the entry of a new order which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed June 26, 1996 to the following parties:
Mark Crews, 3210 Kearney, Denver, CO 80207
City and County of Denver, 110 16th St., Denver, CO 80202-5202
Robert W. Turner, Esq., 1290 Broadway, #807, Denver, CO 80203 (For Claimant)
Wayne E. Vaden, Esq., 1445 Cleveland Pl., #200, Denver, CO 80202 (For Respondent)
BY: _______________________