Opinion
W.C. Nos. 4-373-349 4-489-980
June 14, 2002.
FINAL ORDER
TCI Satellite Entertainment Inc., and its insurer, Liberty Mutual Insurance Company (collectively the Liberty respondents), seek review of an order of Administrative Law Judge Harr (ALJ) insofar as the ALJ required the Liberty respondents to provide medical benefits. We affirm.
On January 30, 2001, the claimant filed a workers' compensation claim which alleged a low back injury while "moving a CPU (computer) across" her desk. The Liberty respondents denied liability.
Based on the claimant's testimony and the medical records, the ALJ found the claimant sustained her burden to prove she suffered a compensable low back injury on June 26, 2000, as a result of the computer incident. The ALJ also determined Dr. Brunworth's treatment recommendations for the claimant's low back condition are reasonable and necessary to cure and relieve the effects of the June 26 injury. Therefore, the ALJ ordered the Liberty respondents to provide medical benefits for the back injury. The ALJ's order also requires Federal Insurance Company (Federal) to provide additional medical benefits for treatment of an admitted 1998 knee injury.
On review, the Liberty respondents contends there is not sufficient evidence to support the ALJ's finding the claimant suffered a work-related back injury on June 26, 2000. In support, the Liberty respondents point out that the claim for workers' compensation alleged a date of injury of May 2, 2000, and the claimant testified the injury occurred in early June.
The claimant had the burden of proof to establish by a preponderance of the evidence that she sustained a back injury arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2001; § 8-43-201, C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Proof by a preponderance of the evidence required the claimant to establish that it is more probable than not that she was injured on June 26, 2001. The question of whether the claimant met her burden of proof to establish a causal connection between the employment and the need for low back treatment 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). Because the issue is factual in nature, we must uphold the ALJ's pertinent findings of fact if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). This standard of review requires that we defer to the ALJ's credibility determinations and his assessment of the sufficiency of the evidence. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Further, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon to adversary hearings in workers' compensation claims. See West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication). Where the evidence is conflicting, it is the ALJ's sole prerogative as the fact finder to resolve the conflicts and we may not substitute our judgment for that of the ALJ in this regard. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) ; El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
The record contains highly conflicting evidence concerning the date of the alleged injury. As argued by the Liberty respondents, the claimant testified the low back injury occurred in "June of 2000, early June of 2000." (Tr. p. 17). Similarly, Dr. Lesnak's November 8, 2001 report refers to a low back injury "in June 2000," while moving a CPU unit after which the claimant sought treatment from Dr. Harris.
Dr. Harris reported the claimant sought treatment on June 26, 2000 for complaints of back pain with twisting or bending and the claimant threw her back out "Last Thurs." Further, Dr. Brunworth's report of July 5, 2000, refers to a work-related back injury on June 27, 2000. In view of this evidence, the ALJ reasonably inferred the claimant's low back condition is related to a work-related injury from moving a CPU unit in June 2000, which most probably occurred on or about June 26.
We also reject the Liberty respondents' contention there is no evidence to support the ALJ's finding that Dr. Harris considered the CPU lifting incident to be a new injury on June 26, 2000. (Finding of Fact 6). The hearing exhibit F submitted by Federal contains a note which states "Talked to Dr. Harris-He considered this new injury on 6/26/00." Therefore, it is immaterial the record contains medical evidence which might support a finding Dr. Harris attributed the claimant's low back pain to the compensable knee injury in 1998. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Finally the Liberty respondents contend the ALJ's order is insufficient to ascertain what if any specific medical benefits the ALJ has ordered them to pay. Again we disagree.
The ALJ ordered the Liberty respondents to provide medical benefits necessary to cure and relieve the effects of the low back injury. In addition, the ALJ explicitly determined that:
"Dr. Brunworth's treatment recommendations for claimant's low back condition are reasonable and necessary to cure and relieve the effects of her June 26, 2000, injury." (Conclusions of Law p. 5).
Further, the ALJ found Dr. Brunworth referred the claimant for physical therapy and x-rays for treatment of the low back injury. (Findings of Fact 7, 8). There was no dispute Dr. Brunworth is authorized to treat the back injury. It follows that the ALJ inherently ordered the Liberty respondents to pay for the x-rays and physical therapy treatment recommended by Dr. Brunworth.
In contrast, the ALJ found that Dr. Brunworth's recommendation for an MRI was reasonably necessary to treat the 1998 knee injury. Therefore, the ALJ held Federal responsible for the cost of the MRI.
Moreover, the ALJ implicitly reserved the Liberty respondents' right to contest the reasonableness of any other treatment recommended for the low back injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Therefore, the ALJ's order is sufficient to permit appellate review under § 8-43-301(2), C.R.S. 2001.
In view of our disposition we do not consider the claimant's motion to strike the Liberty respondents' brief in support of the petition to review.
IT IS THEREFORE ORDERED that the ALJ's order dated December 27, 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 14, 2002 to the following parties:
Karen Wilcox, 3952 S. Atchison Way, #C, Aurora, CO 80014
TCI Satellite Entertainment, Inc., 8085 S. Chester St., #300, Englewood, CO 80112
Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Federal Insurance Company, _ Scott Danfelser, Chubb Group of Insurance Companies,
Waterview Two, 9155 E. Nichols, #100, Englewood, CO 80112
Robert J. Erickson, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents TCI Satellite Entertainment, Inc. and Liberty Mutual Insurance Co.)
Katherine Markheim Lee, Esq. and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290 (For Respondents TCI Satellite Entertainment, Inc. and Federal Insurance Company)
BY: A. Hurtado