Opinion
W.C. No. 4-498-399
August 9, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon which dismissed the claim for worker's compensation benefits. The claimant contends the ALJ's pertinent findings of fact are not supported by substantial evidence in the record. We affirm.
The claimant testified, and the ALJ found, that on March 18, 2001, the claimant was stocking shelves when she bent over to pick up a bottle which had fallen on the floor. The claimant experienced the immediate onset of low back pain. She was taken to the emergency room and diagnosed with a back strain.
Thereafter, the claimant was conservatively treated for low back strain by Dr. Reasoner. However, the claimant's symptoms did not resolve and Dr. Reasoner referred her to Dr. Roth for a second opinion. Dr. Roth opined the claimant suffers from idiopathic fibromyalgia syndrome which is probably not related to the bending incident on March 18. Dr. Roth's opinion was based on his belief the bending incident was not sufficiently traumatic to trigger fibromyalgia, and the fact the claimant was hypersensitive and tender throughout her body, not just her lower back.
The ALJ credited the opinions of Dr. Roth. Therefore, the ALJ concluded the claimant failed to prove by a preponderance of the evidence that she sustained a back injury arising out of and in the course of her employment.
On review, the claimant challenges the sufficiency of the evidence to support the order. The claimant argues her testimony created a "presumption" that her condition was caused by the bending incident. Further, the claimant argues Dr. Roth's opinions are incredible as a matter of law because they are speculative and contradicted by the medical records prior to his examination. We find no error.
The claimant had the burden to prove by a preponderance of the evidence her back condition was "proximately caused by an accidental injury or occupational disease arising out of and in the course of" her employment. Section 8-41-301(1)(c), C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The claimant is required to show a reasonable probability that the injury was precipitated by the employment, and circumstantial evidence may be sufficient to prove causation. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968). Indeed, it has been held the claimant may establish causation without presenting medical evidence or testimony in support of the claim. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
The question of whether the claimant has proven causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. 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. 1999). In this regard, we note that where a party presents expert opinion on the issue of causation, the weight and credibility of the opinion is a matter exclusively within the discretion of the ALJ as the fact-finder. Cordova v. Industrial Claim Appeals Office, ___ P.3d __ (Colo.App. No. 01CA0852, February 28, 2002); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Relying on Industrial Commission v. Havens, 136 Colo. 111, 314 P.2d 698 (1957), the claimant argues her testimony alone was sufficient to create a "presumption" that her back condition is related to the bending incident. In support of this contention the claimant relies on the temporal relationship between the onset of symptoms and the incident, as well as medical records indicating that she suffered a back strain.
However, we find Havens to be distinguishable. In Havens no party presented any medical evidence concerning the causal relationship between the claimant's heart attack and the work-related exertion. Further, the Havens court noted the referee made unsupported findings of fact concerning the causes of coronary occlusions, and the court described the evidence in the case as undisputed. 314 P.2d at 700-702.
Here, the respondents presented an expert medical opinion that the bending incident was not the cause of the claimant's fibromyalgia, and the cause of the fibromyalgia is idiopathic or unknown. (Tr. pp. 51, 58-61). Thus, this is not a case in which the evidence is undisputed, nor is it a case in which the ALJ made findings on causation which lack any support in the record. Under these circumstances, the weight to be assigned the claimant's testimony, and the inferences to be drawn therefrom, were matters for the ALJ as fact-finder. The claimant's argument notwithstanding, the ALJ was not compelled to presume causation because of the mere temporal relationship between the bending and the onset of the claimant's symptoms, nor because the claimant's condition was originally diagnosed as a work- related back strain.
The claimant next contends the ALJ erred in crediting the opinions of Dr. Roth. The claimant argues Dr. Roth's opinions did not bind the ALJ, and the opinions are speculative and incredible as a matter of law. We find no error.
First, we agree with the claimant that the ALJ was not bound by Dr. Roth's opinions. Rather, as we have already held, the weight to be assigned these opinions was a matter for the ALJ. However, this observation provides no basis for interfering with the ALJ's decision to credit Dr. Roth's testimony. Cordova v. Industrial Claim Appeals Office, supra.
Neither is Dr. Roth's testimony speculative and incredible as a matter of law. Testimony is not incredible as a matter of law unless it is rebutted by hard, certain evidence which shows the testimony is contrary to established or conceded facts or is contrary to the laws of nature. Testimony is not incredible as a matter of law if it is merely conflicting or contradicted. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); People v. Ramirez, 30 P.3d 807 (Colo.App. 2001).
The claimant incorrectly states that the medical records necessarily contradict Dr. Roth's opinion. Dr. Roth explained that although the claimant's condition was originally diagnosed as a lumbar sprain, that diagnosis was later contradicted by the worsening and spread of the claimant's symptoms, as well as observations made during Dr. Roth's own examination of the claimant. Moreover, on May 30, 2001, well before Dr. Roth's examination, physician assistant Valdez noted spinal tenderness at T-12, well beyond the location of the alleged lumbosacral sprain. Thus, the medical records do not provide the type of hard and certain evidence which would permit us to conclude Dr. Roth's expert opinion is incredible as a matter of law.
The claimant also argues that Dr. Roth's opinion is speculative because he testified the cause of fibromyalgia is undeterminable and that some physicians believe body motion could cause the condition. However, these statements, at most, affected Dr. Roth's credibility and don't require the conclusion that his testimony is incredible as a matter of law. Dr. Roth explained that although some cases of fibromyalgia are "co-associated with some other type of antecedent medical condition," the "majority" of cases are idiopathic or of unknown origin, and there are no physical signs to explain them. (Tr. p. 59). Further, in view of the alleged triggering event and the claimant's young age, he testified the claimant's fibromyalgia falls in the idiopathic category. (Tr. p. 60). Thus, Dr. Roth's opinion is based on a plausible interpretation of the evidence, and is not contradicted by hard, certain evidence to the contrary. Further, Dr. Roth's testimony supports the ALJ's finding that the claimant failed to carry her burden of proof to establish the bending incident was the proximate cause of her condition.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated December 28, 2001, 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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 9, 2002 to the following parties:
Catherine Smith, 805 Dahlia Dr., Colorado Springs, CO 80911
Matthew Gordon, K-Mart, 6460 South Highway 85/87, Colorado Springs, CO 80817
Kathy Genoff, McMillan Claims Service, 2785 Speer Blvd., #110, Denver, CO 80211
Michael W. McDivitt, Esq., 19 E. Cimarron St., Colorado Springs, CO 80903 (For Claimant)
Margaret Keck, Esq., and Derek Regensburger, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado