FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated November 16, 2007 that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant testified that she suffered an alleged injury to her back while working for the employer on January 31, 2006 when she was helping a resident take a shower. The claimant had previously suffered an industrial injury to her back while working for a prior employer in January 2005 when the claimant attempted to transfer a patient from a wheelchair to a bed. The record revealed numerous inconsistencies in the claimant's account. The ALJ concluded that the claimant had failed to establish by a preponderance of the evidence that she sustained a compensable injury to her low back on January 31, 2006 during the course and scope of her employment with the employer.
On appeal, the claimant contends that the ALJ erred in ruling that she had failed to prove that she suffered a compensable work related injury. The claimant first argues that the claimant's diagnosis and symptoms resulting from the injury with the prior employer in 2005, which was diagnosed as an iliofemoral sprain, are quite different from the condition diagnosed and symptoms from the claimed 2006 accident, which was diagnosed as acute lumbar radiculopathy. The claimant argues that the 2005 prior injury was primarily in the area of her sacroiliac joint not her low back and that she had recovered completely before her claimed 2006 accident. We are not persuaded that the ALJ erred.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2007; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ's determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2007. Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
If an industrial injury aggravates or accelerates a pre-existing non-industrial condition so as to cause a need for treatment, the claimant has sustained a compensable injury and respondents are liable for treatment caused by the aggravation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, when a claimant experiences symptoms while at work it is for the ALJ to determine whether subsequent need for treatment was caused by an industrial aggravation of a pre-existing condition or by the natural progression of the pre-existing condition. The mere experience of symptoms at work does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Cotts v. Exempla, W. C. No. 4-606-563 (August 18, 2005). Resolution of that issue is also one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The claimant notes that on February 22, 2005 when Dr. Thompson placed the claimant at maximum medical improvement from the 2005 injury the claimant reported no pain in her leg and her low back was "nontender." Exhibit 5 at 7. Dr. Thompson also opined that when he saw her in June 2006 after the alleged 2006 injury, her current condition was secondary to her claimed 2006 injury. Exhibit 5 at 2.
However, the ALJ credited the testimony of two employer witnesses who testified that on February 2, 2006, following the claimed injury on January 31, 2006, the claimant specifically denied injuring her back at work and instead stated that she aggravated her previous workers' compensation injury while at home. Tr. (10/15/07) at 9; Tr. (4/19/2007) at 59-60; Exhibit D at 91. The claimant did not report her injury to the employer on the day of the incident. Exhibit A at 10. A physical therapist report dated February 17, 2006 contained the history that the claimant's injury actually occurred in January 2005 when she was trying to help a patient back into bed or into a chair and she just had a flare up in January 2006 when she was not really doing anything. Exhibit C at 36. The ALJ also found, with record support, that Dr. Bernton credibly opined that the January 31, 2006 incident constituted a new episode that was not work-related. Exhibit F at 108.
Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). We perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued November 16, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
GWEN MARIE HARRIS, 3717 S TAFT HILL ROAD #25, FT COLLINS, CO, 80526 (Claimant).
GOLDEN PEAKS NURSING , Attn: ATTN: COLEAN, C/O: REHABILITATION
CENTER, 1005 EAST ELIZABETH STREET, FT COLLINS, CO, 80524 (Employer) ZURICH AMERICAN INSURANCE COMPANY, Attn: MICHAEL SHOBACK, P O BOX 20048, KANSAS CITY, MO, 64195-0048 (Insurer).
RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ., 2550 STOVER STREET, BUILDING C, FT COLLINS, CO, 80525 (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: MATTHEW C HAILEY, ESQ., 999 18TH STREET, SUITE 1600, DENVER, CO, 80202 (For Respondents).