Opinion
W.C. No. 4-729-518.
February 23, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated October 3, 2008, that determined the claim was not compensable. We affirm.
The claimant worked as a seasonal worker for the respondent, primarily taking care of flowerbeds at a golf course. The claimant contends that she suffered an occupational disease involving her upper extremities as a result of performing her job duties. The ALJ found the supervisors' description of the claimant's work activities more credible than the claimant's description. The ALJ concluded that the claimant had not proven by a preponderance of the evidence that her work activities caused or contributed to her upper extremity problems, the onset of which was in July 2007. The claimant appealed the ALJ's order.
I.
The claimant first contends that the ALJ erred by failing to address the application of the Medical Treatment Guidelines (Guidelines) to the cause of the claimant's medical conditions, rendering the ALJ's factual findings and legal conclusions insufficient to permit appellate review. The claimant contends that the determination of the compensable nature of the claimant's industrial injury is controlled by the application of the Guidelines absent a clearly articulated rationale for deviating from them. We do not agree.
The Guidelines are contained in W.C. Rule of Procedure 17-2(A), 7 Code Colo. Regs. 1101-3, and provide that health care providers shall use the Guidelines adopted by the Division of Workers' Compensation (Division). The Division's Guidelines were established by the Director pursuant to an express grant of statutory authority. See § 8-42-101(3.5)(a)(II), C.R.S. 2008. In Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003) the court noted that the Guidelines are to be used by health care practitioners when furnishing medical aid under the Workers' Compensation Act. See Section 8-42-101(3)(b), C.R.S. 2008.
The Guidelines are regarded as accepted professional standards for care under the Workers' Compensation Act. Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo.App. 2005). However, in our view, the compensable nature of the claimant's industrial injury is not controlled by the application of the Guidelines. Indeed, in determining the compensability of a claim, an ALJ is not bound by any medical opinion, even if it is unrefuted. Indus. Commission v. Riley, 165 Colo. 586, 591, 441 P.2d 3, 5 (1968); Davison v. Industrial Claim Appeals Office of State 84 P.3d 1023 (Colo. 2004).
Instead, in our view the determination of the compensable nature of an alleged occupational disease remains controlled by the Workers' Compensation Act and by relevant case law. The claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. 2008. Here, the claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant's employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Because the issue of causation is factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2008. This standard of review requires deference 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, supra. In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here the record contains substantial evidence supporting the ALJ's conclusion that the claimant did not sustain an occupational disease. Dr. Carrier, the claimant's primary treating physician for her upper extremity problems, initially stated that he believed the claimant's work activities caused her upper extremity problems. Exhibit 4 at 9 53. However, in his deposition testimony Dr. Carrier modified his opinion. Dr. Carrier stated if the claimant's work activities were more consistent with the job description provided by the respondent to him at the time of his deposition, then her work activities did not cause or contribute to her upper extremity problems. Carrier Depo. at 19-20. Dr. Carrier also stated that if the claimant's work activities were more consistent with the description that the claimant provided him with then her work activities did cause her upper extremity problems. Carrier Depo. at 43. The ALJ accepted the job description of the claimant's activities as provided by her supervisors. In addition, the opinions of Dr. Primack support the ALJ's order. Dr. Primack opined that the claimant's work activities did not cause her upper extremity symptoms. Exhibit A.
The respondent presented extensive evidence on the claimant's work activities. This evidence included exhibits and testimony from her supervisors. Exhibits D F; Tr. 62-100 and Tr. at 155-167. The ALJ found the weight of credible evidence to be more consistent with the job description of the claimant's activities as provided by her supervisors. Our authority to disturb the ALJ's weighing of the evidence is extremely limited and is certainly not appropriate here. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ's credibility determinations are binding unless the testimony is rebutted by hard, certain evidence such that as a matter of law the ALJ would err in crediting the testimony). Here, the record amply supports the ALJ's determination that the claim was not compensable and therefore we perceive no basis on which to interfere with the ALJ's finding.
Specifically on the issue of the Guidelines, the claimant argues that the claimant's condition did meet causality requirements under the Guidelines for cumulative trauma disorder. The claimant refers to Table 2 of the cumulative trauma disorder. Exhibit 2. Table 2 addresses risk factors associated with the development of cumulative trauma. Under the diagnosis of elbow musculoskeletal disorder the table provides that there is strong evidence that this diagnosis would be work-related if there is a combination of high force and high repetition. Additionally the table provides that there is good evidence for the development of a work-related cumulative trauma disorder in the form of epicondylitis if there is a high force alone.
As indicated above it would be appropriate for the ALJ to consider the Guidelines on the question of diagnosis and cause of the claimant's condition. See Siminoe v. Worldwide Flight Services, Inc., W.C. No. 4-535-290 (November 21, 2006). However, the claimant has not cited any authority, nor are we aware of any, for the proposition that a deviation from the Guidelines compels the fact finder to disregard the opinion of that medical expert on the issue of the causal connection between a work related injury and a particular medical condition. See Eldi v. Montgomery Ward W.C. No. 3-757-021 (October 30, 1998); See Jones v. T.T.C. Illinois, Inc., W.C. No. 4-503-150 (May 5, 2006) (the Guidelines are not definitive).
Moreover, we note that the respondent's medical expert Dr. Primack testified that he was familiar with the Guidelines and even taught the subject of cumulative trauma disorders for the Division of Labor. Primack Depo. at 13. Dr. Primack opined that after considering the mechanics of the alleged occupational disease he would conclude that the claimant's condition would not meet the criteria for causation set forth in the Guidelines. Exhibit A at 4.
Further, Dr. Primack testified regarding the use of the Guidelines. Dr. Primack testified that the best supportive evidence in determining whether the claimant's work activities caused her upper extremity problems was whether the claimant engaged in repetitive forceful gripping. Primack Depo. at 7. Dr. Primack explained that in terms of making a causality determination it is important to determine whether a person is having rest activities between high force and high repetition activities because a rest cycle allows the person to recalibrate the muscle tendon and avoid injury. Primack Depo. at 8-9. Dr. Primack opined based on the employer's description of the claimant's work activities that there clearly was an opportunity for many rest cycles. Primack Depo. at 23. Dr. Primack opined that her work activities did not cause her symptoms. Primack Depo. at 24. Dr. Primack testified that the type of job she had was not sufficient to cause the type of problem the claimant had. Primack Depo. at 25.
As noted above we are not persuaded that the compensable nature of the claimant's industrial injury is controlled by the application of the Guidelines. In any event, here the opinions of Dr. Primack constitute substantial evidence that the Guidelines support the conclusion that the claim is not compensable. Although the ALJ did not specifically discuss the Guidelines, he did generally credit the opinions of Dr. Primack. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). As we read the ALJ's order he was not persuaded that the Guidelines mandated a finding that the claimant suffered an occupational disease involving her upper extremities as a result of performing her duties for the employer. Therefore, we perceive no reversible error committed by the ALJ and accordingly we may not disturb his order.
II.
The claimant next contends that the ALJ abused his discretion when he concluded that the claim was not compensable based upon unsupported factual findings. Specifically, the claimant argues that the ALJ at one point in his order found that the claimant performed her job duties at a slower pace and this afforded her the opportunity to rest her upper extremities before resuming additional hand activities. Findings of Fact § 5 at 3. The claimant contends that the ALJ erred in concluding that because the claimant worked at a slower pace than other workers who had performed the claimant's job previously that the claimant was afforded opportunity to rest her upper extremities before resuming additional hand activities. We are not persuaded that the ALJ erred.
Here the ALJ found with record support that the claimant required approximately two months preparing the perennial gardens in comparison to other workers who required no more than two to three weeks to do the same. Tr. at 35 71. In our view, it is a plausible inference drawn from the record that because the claimant performed her job duties at a slower pace she would have an opportunity to rest her upper extremities. See generally Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 supra.
Moreover, we note that the ALJ also found that the claimant was afforded opportunities for rest when she traveled between different flowerbeds to perform her work activities. Findings of Fact § 16 at 4. As we read the ALJ's order, he made a number of findings regarding the repetitive nature of the claimant's work and the periodic periods of rest available within her work. Several of these pertinent findings are as follows. The claimant used a Cushman vehicle to transport herself from one flowerbed to another. Tr. at 56. The claimant also would use the Cushman utility vehicle to collect trash. Tr. at 78-79 Exhibit F. The claimant would perform the job of transplanting lilies for a short period of time, then stop that project and go somewhere else to do some other kind of work. Tr. at 56-57. The claimant was required to perform some light raking of twigs and small limbs and upon seeing such debris would stop her Cushman, rake up the small twigs and limbs with a leaf rake, and put them in the back of the vehicle. Tr. at 74 Exhibit F. The claimant operated a bunker-raking machine, which was similar to a riding lawnmower. Tr. at 77-78. The claimant would drive her bunker-raking machine to a particular bunker, then rake the bunker using the machine, get off the machine and use her hands to rake around the edges. She would then drive to another bunker. Tr. at 77-78. These factual findings are detailed and specific and we do not agree with the claimant that the ALJ made only conclusory findings on the issue of whether the claimant's work afforded rest periods.
As noted above, because the issue of causation is factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. In our opinion, there was ample support in the record for the ALJ's determination that the job duties afforded her the opportunity to rest her upper extremities. Because we find that ALJ's resolution is supported by substantial evidence in the record, we uphold his denial of the claim. Section 8-43-301(8), C.R.S. 2008.
IT IS THEREFORE ORDERED that the ALJ's order dated October 3, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
BARBARA CAHILL, COLORADO SPRINGS, CO, (Claimant).
PATTY JEWETT GOLF COURSE CITY OF COLO SPRGS, Attn: LORI STEWART, COLORADO SPRINGS, CO, (Employer).
STEVEN U MULLENS, P.C., Attn: RICHARD M LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, P.C., Attn: GREGORY K CHAMBERS, ESQ., DENVER, CO, (For Respondents).