Opinion
W.C. No. 4-702-329.
April 2, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated November 13, 2007, that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant alleged he sustained a work-related injury involving his low back on June 21, 2006 caused by pushing the foot pedals of a backhoe. The claimant's onset of pain symptoms was gradual and he was not involved in any traumatic incident. The claimant had experienced recurring pain symptoms involving his low back and left leg/hip since at least January 2005. The symptoms the claimant experienced because of his alleged accident were nearly identical to the symptoms he experienced on a recurring basis before his alleged accident. Dr. Youssef revised his original opinion after learning of the claimant's prior condition and concluded that the claimant did not suffer any work-related injury and his need for medical treatment was not caused by his job duties with the employer. Dr. Sacha opined that the claimant did not suffer any work-related injury and his pain symptoms were consistent with the natural progression of pre-existing, non-work-related stenosis. The ALJ found Dr. Sacha's opinions to be credible. The ALJ found the claimant had failed to establish by a preponderance of the evidence that he sustained a compensable injury and dismissed the claim.
I.
On appeal, the claimant first contends that the ALJ failed to apply the applicable legal standard in determining whether the claimant suffered a compensable injury. The claimant, citing H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990), argues that the ALJ's findings are devoid of any consideration of whether the claimant's preexisting condition was aggravated by the claimant's industrial activities.
Of course, the fact that the claimant has a pre-existing condition does not preclude compensability, and the claimant is entitled to benefits if he proves the conditions of employment aggravated, accelerated or combined with the preexisting infirmity to produce the disability and need for treatment. See H H Warehouse v. Vicory, supra; Denver v. Hansen, 650 P.2d 1319 (Colo.App. 1982). However, the question of whether the claimant proved the requisite causal relationship is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The issue is also one of fact when the evidence presents alternative theories, and the ALJ must determine which of two possible causes is responsible for the claimant's condition. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001). Consequently, we must uphold the ALJ's resolution of the causation issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1991). Further, the ALJ is not held to a standard of absolute clarity when entering findings of fact and conclusions of law. The ALJ need only make findings concerning evidence, which is found to be dispositive of the issues, and conflicting evidence is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We disagree with the claimant's assertion that the ALJ made no findings concerning whether the claimant's pre-existing condition was aggravated by the claimant's industrial activities, or whether those activities accelerated the need for medical treatment. The ALJ in finding the opinions of Dr. Sacha to be credible specifically noted the doctor's opinion that the claimant's pain symptoms were consistent with the natural progression of pre-existing, non-work-related stenosis. Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶¶ 10-11. Further, the ALJ noted that Dr. Youssef revised his original opinions after learning of the claimant's pre-existing condition and then concluded that the claimant did not suffer any work-related injury and his need for medical treatment was not caused by his job duties with the employer. Order at 3, ¶ 12. Further, the ALJ specifically found that the claimant's pre-existing low back and left leg/hip problems were caused by the natural progression of his non-work-related spinal stenosis. Order at 2, ¶ 2. It is clear that based on this medical evidence the ALJ concluded that the claimant's pre-existing condition did not aggravate, accelerate or combine with the preexisting infirmity to produce the disability and need for treatment.
The claimant further argues that the ALJ misapplied that law concerning the claimant's burden of proof based on statements in the ALJ's order regarding medical evidence and improperly placed a greater burden of proof on the claimant. The claimant refers to statements contained in the ALJ's conclusions of law. These statements are as follows:
The ALJ concludes that the weight of the credible medical evidence establishes within a reasonable degree of medical probability that the claimant has not sustained a work-related injury to his back. Thus, the claimant has failed to establish by a preponderance of the evidence that he sustained a compensable, work-related injury.
Order at 4, ¶ 3.
We agree that a claimant is not required to present medical evidence to prove the cause of the condition. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). Pertinent lay testimony may support a finding of causation despite conflicting medical evidence or testimony. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The ALJ is under no obligation to credit medical testimony, even if such testimony is unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
However, as the ALJ correctly noted, § 8-43-201 C.R.S. 2007 provides that a claimant in a workers' compensation claim shall have the burden of proving entitlement to benefits by a preponderance of the evidence. Order at 3, ¶ 1. As we read the ALJ's order, he merely concluded that the weight of the credible medical evidence established that the claimant had not sustained a work-related injury to his back. We do not, as urged by the claimant, understand that ALJ to have labored under the misapprehension that the issue of compensability is exclusively a medical determination.
Although the claimant was not required to prove causation by medical evidence, where, as here, such evidence was presented, it was for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, supra. The ALJ found credible the opinion of Dr. Sacha's opinion that the claimant's pain symptoms were consistent with the natural progression of pre-existing, non-work-related stenosis. The ALJ noted other medical evidence suggesting that the claimant did not suffer any work-related injury. While medical evidence is not dispositive of causation, the ALJ may, as the ALJ did here, consider and even rely on expert medical opinion in resolving the issue of whether a causal connection exists between the claimant's work and any claimed physical condition. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). In addition, we note that in the absence of a showing to the contrary the ALJ is presumed to have considered and applied the relevant legal principles. See Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003); Younger v. Merritt Equipment Company, W. C. No. 4-326-355 (February 14, 2005).
The claimant argues that the ALJ's use of the phrase "a reasonable degree of medical probability" established that the ALJ improperly placed a greater burden of proof on the claimant. The claimant contends the ALJ required him to prove his case to "a reasonable degree of medical probability." We disagree.
It is true in People v. Ramirez, 155 P.3d 371(Colo. 2007), the Supreme Court of Colorado discussed the threshold standards of admissibility of expert evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and CRE 702 and concluded that the Colorado rules of evidence provide the standard for admissibility of expert evidence. The court found the phrase "reasonable medical probability" to be "outdated and inappropriate for determining the admissibility of expert testimony." Ramirez, 155 P.3d at 375.
Here, in contrast to the situation in People v. Ramirez supra, the issue before the ALJ was not the admissibility of expert evidence. Rather, the ALJ in commenting on the weight of the evidence summarized the credible medical evidence as establishing within a reasonable degree of medical probability that the claimant had not sustained a work-related injury to his back. The claimant's argument notwithstanding, we do not read the ALJ's order as placing a burden on the claimant to prove he suffered a compensable injury with in a reasonable degree of medical probability. As noted above the ALJ in his order had specifically commented on the requirement in § 8-43-201 that the claimant had the burden of proving entitlement to benefits by a preponderance of the evidence. Therefore, we are unpersuaded that the ALJ failed to apply the applicable legal standard in determining whether the claimant suffered a compensable injury.
II.
The claimant next contends that the ALJ's findings of fact are insufficient to allow appellate review. The claimant argues that the ALJ made the conclusory statement that the claimant's problems were caused by his pre-existing condition and then did not shore this up with objective evidence. Therefore, the claimant argues that the ALJ's finding on causation was merely a conclusion. We disagree.
We may set aside an order to the extent the findings are insufficient to support appellate review. Section 8-43-301(8) C.R.S. 2007. Although the ALJ need not enter findings concerning every piece of evidence, the findings must be sufficient to indicate the factual and legal basis of the ALJ's determination, and purely conclusory findings are inadequate. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969); Schwindt v. Industrial Systems, Inc., W. C. No. 4-550-562 4-553-606, 4-553-608 (November 4, 2003).
Here, as we noted above, the ALJ found that the claimant's back and leg problems were caused by the natural progression of his non-work-related spinal stenosis. The ALJ's order then contains a discussion of the medical evidence he relied upon and found persuasive in finding a causal connection between the claimant's complaints and his spinal stenosis. The evidence relied upon by the ALJ and outlined in his order included a number of opinions from physicians and included the following. Dr. Sacha rendered opinions on causation as mentioned above. Exhibit A at 4-5. Dr. Youssef revised his original opinion that the claimant suffered a work-related injury after additional information was supplied regarding the claimant's pre-existing condition. Exhibit D at 24. Dr. Youssef agreed with Dr. Sacha's opinions regarding causation of the claimant's condition. Exhibit D at 24-25. Dr. Beard concluded that there is no evidence to support a work-related basis for surgery. Exhibit B. Dr. Kumar opined there was no information to suggest that this was "workman's comp related." Exhibit C. In our view, the findings of fact made by the ALJ are sufficient to support appellate review. Further, the ALJ's findings are amply supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to benefits and compensation. Accordingly, we perceive no basis on which to disturb the ALJ's order.
III.
The claimant next contends that the ALJ failed to properly address and resolve conflicts in the evidence. The claimant argues that the ALJ cited the claimant's preexisting history of low back/left leg pain since 2005, but failed to make any finding as to what caused the symptoms in 2005. The claimant argues he credibly testified that his "first symptoms of left leg/hip and /or low back pain began in December/2004 or January, 2005" while using the same backhoe loader he used during the June 21, 2006 event, but the ALJ made no mention of this testimony. The claimant contends that if his prior symptoms in 2005 were caused by working for the employer then his claim is compensable. Therefore, the claimant argues the ALJ erred failing to make any finding as to what caused the symptoms in 2005. We disagree.
We first note, despite the claimant's contention, that the ALJ did find that the claimant's "pre-existing low back and left leg/hip problems were being caused by the natural progression of his non-work-related spinal stenosis." Order at 2, ¶ 2. This finding is supported by the record. Dr. Sacha issued a written report and testified to that effect. Exhibit A; Sacha Depo. at 12. An MRI taken of the lumbar spine revealed stenosis and foraminal narrowing. Exhibit H at 80. Therefore, the ALJ did make a finding as to what caused the claimant's pre-existing symptoms and this finding was supported by the record.
The claimant argues that the ALJ did not even mention the findings of Dr. Wong. We again disagree. The ALJ found that Dr. Wong diagnosed a work-related injury and recommended surgery. Order at 3, ¶ 9. The ALJ further found that Dr. Wong performed surgery, which was paid for by the claimant's personal health insurer, and Dr. Wong did not request or receive prior authorization from the insurance carrier before performing the surgery. Order at 3, ¶ 9. The ALJ additionally found that none of the claimant's authorized treating physicians referred him to Dr. Wong and that Dr. Wong actually performed an independent medical examination. Order at 3, ¶ 10.
In any event, the ALJ was under no requirement to discuss Dr. Wong's opinions. As noted by the ALJ here, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra; Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). We have considered the claimant's remaining arguments, but are not persuaded to disturb the ALJ's decision.
IT IS THEREFORE ORDERED that the ALJ's order issued November 13, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
K. REED DAVIS, DURANGO, CO, (Claimant).
NEEDLES HOMEOWNERS ASSN, INC., Attn: JEFFREY BAYMOR, TUCSON, AZ, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY FLEWELLING, ESQ., DENVER, CO, (Insurer).
DAWES AND HARRIS, PC, Attn: ELLIOT L BLOODSWORTH, ESQ., DURANGO, C0, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: VITO A RACANELLI, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: SCOTT NEILSON, DENVER, CO, (Other Party).