IN THE MATTER OF THE CLAIM OF BRIAN BABIN, Claimant, v. CITY OF COLORADO SPRINGS, Employer, and SELF-INSURED, Insurer, Respondents.

W.C. No. 4-826-188.Industrial Claim Appeals Office.
June 6, 2011.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated January 20, 2011 that denied the claim for compensation. We affirm.

A hearing was held on the issue whether the claimant sustained a compensable injury. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant was employed as a police officer and on May 23, 2010 he was on duty and went to a local school in order to run on its track. He walked and jogged approximately four laps on the track and while returning to his car the claimant “believed” that he stepped in a small, uneven hole that caused a “shock up his spine.” The claimant’s pain resolved immediately and he finished his shift and testified that that evening he felt “normal.” The following day the claimant experienced increased back pain, although the ALJ found that he had “given several descriptions” of the symptoms to various doctors. The claimant called in sick at work for three days on account of his back pain; however, he did not report a work-related injury. The claimant went to an emergency room for treatment on May 26, 2010, where he gave a history of an old back injury with surgery but no recent trauma. He was treated by Dr. Ellias, to whom he provided a history of chronic back pain with two previous surgeries, but again did not attribute his problems to any acute trauma. The ALJ found that the claimant received treatment from other providers but in no case did he give a history attributing the cause of his back pain to an acute incident on May 23rd. On October 7, 2010 Dr. Bisgard evaluated the claimant and stated that he has degenerative disc disease. Dr. Bisgard opined that the claimant’s back pain beginning on May 24th could have “spontaneously” occurred without any acute event causing it.

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Based upon his factual findings, the ALJ concluded that the claimant failed to carry his burden of showing that he sustained a work-related injury on May 23, 2010. The ALJ relied upon the opinions of Dr. Bisgard and found that it was more likely that the claimant’s back problems were the natural progression of his pre-existing problems.

The claimant appealed and argues that the ALJ failed to resolve conflicts in the evidence and that certain of his factual findings are not supported by substantial evidence. We have reviewed the record and considered the claimant’s arguments and we are unpersuaded that the ALJ erred or abused his discretion.

The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his factual findings must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995).

The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). Where conflicting expert opinion is presented, it is for the ALJ as fact-finder to resolve the conflict Rockwell International v. Turnbull, 802 P.d. 1182 (Colo. App. 1990).

Contrary to the claimant’s argument, the ALJ resolved all conflicts in the evidence that were necessary for the ALJ to determine whether the claimant sustained a compensable accident. We do not read the ALJ’s order as being ambiguous regarding whether the claimant stepped in a depression in the ground while returning to his car. It is true that the ALJ stated in his conclusions of law that “to the extent” that the claimant experienced pain when he stepped in a low spot on the ground that pain did not cause the claimant’s subsequent back problems. However, as we understand his order, he credited the claimant’s testimony about stepping in the depression, which the ALJ found was an “uneven surface” in the ground. Findings of Fact, Conclusions of Law and Order at 3, ¶ 7.

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The ALJ’s findings of fact are also supported by substantial evidence. The ALJ relied upon the claimant’s testimony that the pain he experienced from stepping in the depression “immediately resolved” and he completed his work shift without difficulty. The ALJ also found it significant that the claimant consulted numerous providers without attributing the onset of his persistent back pain to the incident in which he stepped in the low spot on the ground. The ALJ also relied upon the claimant’s history of pre-existing back problems and he expressly credited Dr. Bisgard’s opinion that the claimant’s back problems could have occurred without any precipitating event. The ALJ inferred from the evidence that the claimant’s back problems were the natural progression of his low back condition rather than from the incident at the running track. This was a reasonable inference from the record and, as such, we must uphold it on appeal.

IT IS THEREFORE ORDERED that the ALJ’s order dated January 20, 2011, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Curt Krikscium

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BRIAN BABIN, PO BOX 5635, WOODLAND PARK, CO, (Claimant).

CITY OF COLORADO SPRINGS, Attn: JANE MADSEN, COLORADO SPRINGS, CO, (Employer).

RICHARD M. LAMPHERE, ESQ., C/O: STEVEN U. MULLENS, PC, PUEBLO, CO, (For Claimant).

DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, PC, Attn: GREGORY K. CHAMBERS, DENVER, CO, (For Respondents).

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