Opinion
W.C. No. 4-751-533.
October 21, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) issued May 14, 2009, that denied and dismissed the claim for compensation. We affirm.
In January 2002, the claimant complained of recurrent neck and back pain. The claimant began employment in August 2002 and his job included route sales, which required use of his upper extremities over shoulder height. The claimant noticed a weakness in his shoulder as he was moving product out of his truck in September 2007. In January 2008, the claimant felt a tear in his left arm. He noticed that his shoulder had atrophied. The claimant felt there was a connection between the weakness in September 2007 and the atrophy in January 2008 and filed a claim in February 2008.
The ALJ found that the claimant had established that his left shoulder is weak and has atrophied as a result of a cervical radiculopathy. However, the ALJ also found that the claimant had not established that his cervical radiculopathy was caused, aggravated, or accelerated by the duties of his employment. Therefore, the ALJ concluded that the claimant had not met his burden to establish that he suffered from an occupational disease, denied and dismissed the claim.
I.
On appeal, the claimant contends that the ALJ findings are insufficient for appellate review. Therefore, the claimant request that the matter be remanded for further findings.
Section 8-43-301(8), C.R.S. 2009 provides that the Panel may remand when findings of fact are insufficient for appellate review. However, in our view the ALJ's factual findings are sufficient to identify the evidence the ALJ deemed persuasive and determinative of issues. See Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991). Therefore, we are not persuaded that a remand is necessary.
Here, the ALJ noted that both Dr. Tewes and Dr. Adams had expressed the opinion that the claimant's condition was directly related to his work duties. However, the ALJ found that these opinions were not persuasive because he found the opinions of Dr. Illig that the claimant suffered from a cervical radiculopathy and that this condition was of unknown etiology were credible and persuasive.
The claimant argues that the order does not contain the basis of the ALJ's findings that the opinions of Dr. Tewes and Dr. Adams were not based on the diagnosis of cervical radiculopathy. The claimant argues that the symptoms noted by Dr. Tewes, Dr. Adams and Dr. Illig were all the same and that the physicians just used different names for the same diagnoses. We disagree.
The ALJ made the following findings of fact with record support. Dr. McDonald did a nerve conduction study that showed a mononeuropathy of the left axillary nerve, but a cervical radiculopathy was not seen. Exhibit 4. Dr. McDonald opined that the claimant's picture was most consistent with a left axillary mononeuropathy of unclear origin. Exhibit 8 at 2. Dr. Adams, a chiropractor, concurred with Dr. McDonald's diagnosis of left axillary mononeuropathy, cervical degeneration, and spinal stenosis. However, Dr. Adams found that this diagnosis was consistent with the claimant's work duties involving repetitive and ongoing reaching pushing, and pulling. Exhibit 25. The ALJ found that this opinion was not based on a diagnosis of a cervical radiculopathy and was not persuasive as to the cause of a cervical radiculopathy.
These finding by the ALJ, with record support, can reasonably be viewed as demonstrating that neither Dr. McDonald nor Dr. Adams considered the claimant to have cervical radiculopathy. In contrast, the ALJ found Dr. Illig's opinion that the claimant suffered from a cervical radiculopathy to be credible and persuasive. Exhibit G. Further, Dr. Illig did not state a cause of the claimant's cervical radiculopathy, but rather noted that claimant's symptom was "of unknown etiology of gradual onset." Exhibit 20 at 1.
The ALJ made the additional findings of fact regarding the opinions of Dr. Tewes with record support. Dr. Tewes examined the claimant for complaints of shoulder weakness and pain. Dr. Tewes noted visible atrophy involving the left shoulder girdle, specifically the supraspinatus and infraspinatus muscles. Exhibit 2. Dr. Tewes stated that the claimant's problems were directly related to his work duties. Exhibit 2 at 2. The ALJ found that the opinion of Dr. Tewes was not credible as he did not base his causation determination on a diagnosis of cervical radiculopathy. In our view, the claimant has not demonstrated that the ALJ committed reversible error in his findings concerning the diagnosis made by Dr. Tewes. A reasonable inference from Dr. Tewes' reports can be drawn that his diagnosis did not included cervical radiculopathy. Certainly, Dr. Tewes did not make an explicit diagnosis of cervical radiculopathy.
In our view, the ALJ's findings regarding the correct diagnosis of the claimant's condition and the lack of a causal connection between this condition and the claimant's employment are sufficient for appellate review. Therefore, we are not persuaded that a remand is necessary.
II.
The claimant next argues that the ALJ's findings that the opinions of Dr. Tewes and Dr. Adams were not based on the diagnosis of cervical radiculopathy are not supported by substantial evidence. In our view, this is similar to the previous argument and we again disagree.
A claimant seeking benefits for an occupational disease must establish the existence of the disease and that it was directly and proximately caused by the claimant's employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251, 252 (Colo. App. 1999); see also, § 8-40-201(14), C.R.S. 2009 (defining occupational disease). Because causation is a question of fact, Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337, 1339 (Colo. App. 1997), we are bound by the ALJ's findings in this regard if they are supported by substantial evidence in the record. Wal-Mart Stores, Inc., 989 P.2d at 252. The scope of our review is exceedingly narrow, Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995), and we, must defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Panera Bread, LLC v. Industrial Claim Appeals Office, 141 P.3d 970, 972 (Colo. App. 2006).
Here, as detailed above, there was substantial evidence supporting the ALJ's conclusion that the opinions of Dr. Tewes and Dr. Adams were not based on a diagnosis of a cervical radiculopathy. Consequently, we again are not persuaded that a remand of the matter is necessary.
IT IS THEREFORE ORDERED that the ALJ's order issued May 14, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
EDWARD MUSSAW, COLORADO SPRINGS, CO, (Claimant).
BIMBO BAKERIES, Attn: MARY URBAN, DENVER, CO, (Employer).
ACE, Attn: EVELYN RADMACHER, C/O: ESIS PORTLAND/WC CLAIMS #780-C-397231X, TAMPA, FL, (Insurer).
ANDERSON LOPEZ, PC, Attn: JAMES M ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).