Opinion
W.C. Nos. 4-183-617, 4-254-005
May 24, 1996
FINAL ORDER
Valiant Products Corporation (Valiant) and its insurer Home Indemnity Company (Home), seek review of a final order of Administrative Law Judge Martinez (ALJ) which ordered them to pay medical benefits. We affirm.
The issue in the case is whether the claimant sustained a "substantial permanent aggravation" of her pre-existing lateral epicondylitis while employed at Valiant. In support of his determination that there was a substantial permanent aggravation, the ALJ cited Dr. Pino's testimony that the claimant aggravated her condition at Valiant. Moreover, the ALJ observed that Dr. Pino released the claimant to regular employment without restrictions prior to her employment with Valiant.
The ALJ also cited the claimant's testimony that she was more symptomatic after her employment with Valiant than she was following her employment with respondent Regis Corp. Finally, the ALJ also noted that the claimant required surgery following her employment with Valiant, and has developed "left upper extremity" pain.
On review, Valiant and Home contend that the evidence does not support the ALJ's determination that the claimant sustained a "permanent" aggravation of her condition while employed by Valiant. In support of this argument, these respondents cite the testimony of Dr. Pino that lateral epicondylitis is a recurring condition which rarely results in permanent impairment. The respondents also rely on Dr. Pino's testimony that the claimant's symptoms appeared to be worse in 1993 than they were while she was employed by Valiant in 1994. We are unpersuaded.
The question of whether a claimant has incurred a "substantial permanent aggravation" within the meaning of § 8-41-304(1), C.R.S. (1995 Cum. Supp.), is one of fact for resolution by the ALJ. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In determining the issue, the ALJ is to ascertain whether an "injurious exposure" has had the effect of creating "a substantial and permanent aggravation of the previous condition." Monfort, Inc. v. Rangel, 867 P.2d at 125.
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Moreover, it is for the ALJ to assess the weight and credibility of the evidence, including the medical evidence. Monfort, Inc. v. Rangel, supra.
Here, the record contains evidence from which the ALJ could infer that the "aggravation" of the claimant's condition at Valiant was both substantial and permanent. The evidence that the claimant was released to regular employment in December 1993, and significantly disabled by the recurrence of her condition in 1994, supports the inference that the aggravation at Valiant was "substantial." Moreover, the claimant's treatment after the 1994 recurrence included surgery, a treatment which was not previously recommended. Finally, the claimant's own testimony concerning the degree of her symptoms supports the ALJ's finding.
Moreover, Dr. Pino's opinion that lateral epicondylitis does not generally cause permanent disability does not require a different result. Here, the ALJ received evidence that the claimant's condition worsened over a two year span. Moreover, the claimant's treatment progressed from conservative care to surgical. In view of the period of time that the claimant's condition has persisted and the progression of her treatment, the ALJ could logically conclude that the aggravation of the claimant's condition at Valiant has permanently aggravated her disease.
It is certainly true that the evidence would permit contrary findings and conclusions. However, that fact affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order, dated January 5, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed May 24, 1996 to the following parties:
Tamera Williams, P.O. Box 577, Iganacio, CO 81137
Gail Harriss, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
Valiant Products Corp., 2282 U.S. Hwy. 160B, Bayfield, CO 81122-9611
Home Indemnity Co., P.O. Box 6500, Englewood, CO 80155-6500
Stephen Higgins, Esq., 1290 Broadway, Ste. 807, Denver, CO 80203 (For the Home Indemnity Respondents)
Regis Corporation, 7201 Metro Blvd., Minneapolis, MN 55439-2130
Employers Ins. of Wausau, Attn: Pamela Rose, P.O. Box 419157, Kansas City, MO 64141-6157
William Sterck, Esq., 679 Grant St., Denver, CO 80203 (For the Wausau Respondents)
By: _______________________