Opinion
W.C. No. 4-533-269
April 3, 2003
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant suffered a compensable injury and awarded workers' compensation benefits. We affirm.
On January 13, 2002 the claimant was examined by Dr. Kimura, who is an expert in vitreoretinal surgery. Dr. Kimura diagnosed a torn and detached retina in the left eye. The claimant testified that he noticed the onset of symptoms from the detached retina after heavy lifting at work on January 10 and January 11.
The ALJ found that immediately preceding heavy lifting on January 10, the claimant underwent a medical examination in which no retinal tear or detachment was detected. The ALJ also found that:
"[A]lthough Dr. Kimura believes the heavy lifting experienced by Claimant was not the sole cause of Claimant's retinal detachment, and that the bulk of the causation for Claimant's retinal detachment was due to the Claimant's high degree of myopia, Dr. Kimura did not rule out these heavy lifting incidents as a contributing or aggravating factor in the detachment of Claimant's left retina. In fact, after considering all of the factors before him, Dr. Kimura found that it was more likely than not that the lifting incident was a contributing factor in Claimant's retinal detachment." (Emphasis added).
Crediting the testimony of the claimant and Dr. Kimura, the ALJ found the heavy lifting on January 10 and 11 was an "aggravating factor" in the cause of the detached retina. Therefore, the ALJ ordered the respondent to provide medical and temporary disability benefits in connection with the injury.
On review the respondent contends there is insufficient evidence in the record to support the ALJ's finding that "Dr. Kimura found that it was more likely than not that the lifting incident was a contributing factor in Claimant's retinal detachment." Furthermore, the respondent contends the ALJ erroneously relied on Dr. Kimura's testimony because Dr. Kimura's opinions on causation were not expressed in a "reasonable degree of medical probability." We disagree.
A compensable injury is one which arises out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2002. The "arising out of" test is one of causation. If an industrial injury aggravates or accelerates a preexisting condition, the resulting disability and need for treatment is a compensable consequence of the industrial injury. Thus, the claimant's personal susceptibility or predisposition to injury does not disqualify the claimant from receiving benefits. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
To establish a compensable injury the claimant must prove to a "reasonable probability" that there is a causal connection between the need for treatment and the employment. Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988). Whether the claimant has sustained his burden of proof is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We must uphold the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
The claimant is not required to present medical evidence to prove a compensable injury. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical testimony is presented it is the ALJ's province to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). As argued by the respondents, a medical expert's opinion must generally be based on "reasonable medical probability." Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106(1971). However, a medical expert's testimony is not incompetent merely because the expert does not use the phrase "reasonable medical probability" in articulating his or her opinions. See Shultz v. Anheuser Busch Inc., W.C. No. 4-380-560 (November 17, 2000), aff'd., Anheuser Busch Inc. v. Industrial Claim Appeals Office (Colo.App. No. 00CA2242, November 8, 2001) (not selected for publication) (DIME findings if relevant do not need to be expressed in terms of reasonable degree of medical probability to be admissible); Beudoin Construction Co. v. Industrial Commission, 626 P.2d 711 (Colo.App. 1981); Beach v. Wheat Ridge Fire Protection District, W.C. No. 3-977-580 (September 4, 1992); Naranjo v. Capco, Inc., W.C. No. 4-363-891 (September 28, 1999); Sanders v. A-1 Truck Repair, W.C. No. 4-393-485 (June 11, 1999). Rather, it is for the ALJ, as trier of fact, to consider the expert's opinion and determine from the substance of the opinion whether it carries sufficient weight to be considered credible medical evidence of causation. See Rockwell International v. Turnbull, supra; Anheuser Busch Inc. v. Industrial Claim Appeals Office, supra; Franks v. Apria Healthcare Inc., W.C. No. 4-484-0507 (November 20, 2002).
At the hearing, the respondent did not deny Dr. Kimura's testimony is relevant expert medical evidence on the issue of causation. Nor did the respondent object to the admission of Dr. Kimura's testimony. (Tr. p. 4). To the contrary, the respondent's attorney argued the ALJ would have to read Dr. Kimura's deposition "in its entirety," to determine if the injury was compensable. (Tr. p. 7). Consequently, the respondent's argument that Dr. Kimura's deposition was not relevant medical evidence to the issue of causation was waived. C.R.E. 103(a)(1) (error may not be predicated on the admission of evidence absent a timely objection); § 8-43-210, C.R.S. 2002 (rules of evidence applicable in workers' compensation proceedings); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Lientz v. Overhead Door Company, W.C. No. 4-458-747 (February 3, 2003).
Furthermore, Dr. Kimura testified that he treats 200 to 300 patients a year for retinal detachment and has treated 1000 such patients in the last 5 years. (Depo p. 18). He stated that these patients "quite frequently" report a history of heavy lifting immediately prior to the retina detachment. (Depo. p. 8). He added that even though there is little literature in support, most retina surgeons restrict their patients from heavy lifting after a retinal repair. (Depo. p. 10).
However, Dr. Kimura opined that medicine and the law diverge on the issue of causation, (Depo. p. 8), because there is no literature in the English language which can be cited to prove a causal connection between heavy lifting and retinal tears. Consequently, even though Dr. Kimura expressed a "gut feeling" that heavy lifting aggravated the claimant's pre-existing propensity for a retinal tear, he was unable to state to a degree of reasonable medical probability that it is more likely than not the heavy lifting caused or contributed to the claimant's retinal detachment. (Depo. pp. 15, 20).
Rather, Dr. Kimura assigned the "bulk of the causation" or 80 to 90 percent of the cause was the high myopia. (Depo. pp. 21-22). It follows that Dr. Kimura inherently assigned 10 to 20 percent of the causation to the claimant's heavy lifting activities. Under these circumstances, the ALJ could, and did, reasonably infer that " after considering all of the factors before him, Dr. Kimura found that it was more likely than not that the lifting incident was a contributing factor in Claimant's retinal detachment." (Emphasis added). Therefore, we are bound by the ALJ's finding. Furthermore, the ALJ's finding supports the conclusion the claimant sustained his burden to prove the employment was a causative factor in the injury. Consequently, the ALJ did not err in finding the claimant sustained his burden to prove a compensable injury.
IT IS THEREFORE ORDERED that the ALJ's order dated October 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2002. 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 April 3, 2003 to the following parties:
Andrew Hecker, 219 Birch Ave., Castle Rock, CO 80104
Southland Industries, 17941 Fitch, Irvine, CA 92614
Pamela Moon, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Hurtado