W.C. No. 4-597-627.Industrial Claim Appeals Office.
April 26, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ), which determined the claimant sustained a compensable injury on July 15, 2003 and required the respondents to provide workers’ compensation benefits. We affirm.
The ALJ’s pertinent findings may be summarized as follows. The claimant worked several years as a nurse’s aid for the respondent-employer. The job duties included lifting and transferring patients. In January 2001 the claimant sought medical treatment for complaints of back pain radiating down the right leg. (Finding of Fact 2). Physical therapy was prescribed that improved her condition. In July 2003 the claimant again requested treatment for low back pain. The claimant reported that the pain arose “gradually” and denied any specific event that caused the onset of pain. However, in October 2003 the claimant reported to a physician that her back pain was caused by lifting a patient on or about July 15, 2003.
Based on these findings the ALJ determined the claimant had low back pain and leg pain beginning sometime in May of 2003, which greatly increased after a specific lifting incident at work on July 15, 2003. Further, the ALJ found the July 15 lifting incident aggravated the claimant’s pre-existing back condition and caused the subsequent need for a multi-level laminectomy. Therefore, the ALJ determined the claimant proved a compensable injury on July 15, 2003 and, ordered the respondents to provide temporary disability and medical benefits.
On review the respondents contend the ALJ’s finding of a compensable injury is contrary to the overwhelming weight of the record. The respondents also contend the ALJ’s findings are internally inconsistent. We disagree.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions and must occur while the claimant is “performing service” arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2004.
The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury where the industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). Pain is a typical symptom from the aggravation of a pre-existing condition. A compensable injury may be established where pain from the industrial aggravation triggers a need for medical treatment. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard, we must view the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Initially we reject the respondents’ contention that the ALJ’s findings are internally inconsistent insofar as she found the claimant began complaining of back pain in January 2003 but also found the claimant suffered low back pain “beginning in May” of 2003. The ALJ found the 2001 and 2003 low back symptoms were unrelated except that the 2003 was a compensable aggravation of the claimant’s pre-existing condition. Indeed, the ALJ found the claimant received physical therapy for the January 2001 pain complaints which improved her condition.
The respondents remaining challenges to the ALJ’s findings of fact have been considered and are not persuasive. It is the ALJ’s sole prerogative to determine the weight and sufficiency of the evidence. Further, the ALJ’s credibility determinations are binding unless rebutted by hard, certain evidence to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) ; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Therefore, we may not interfere with an ALJ’s credibility determinations except in extreme circumstances. We conclude no extreme circumstances exist here.
Although the claimant’s testimony is subject to conflicting inferences, the claimant testified that her back pain never went away after lifting a particular patient on July 15, 2003. (Tr. pp. 15, 28). The respondents did not attempt to refute the claimant’s testimony concerning the lifting incident on July 15. Further, it is undisputed the claimant’s job duties are strenuous and involve heavy lifting. (Tr. pp. 9, 54).
The ALJ expressly recognized that the claimant was “not very articulate” in explaining the history of her condition. Nevertheless, the ALJ found the claimant to be “very honest” and we may not substitute our judgment for that of the ALJ in this regard. Finding of Fact 28; see also MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001
(Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication) (inconsistencies, contradictory evidence and incomplete testimony are not uncommon to the adversary process). Under these circumstances, we cannot say the ALJ erred in crediting the claimant’s testimony.
Moreover, there is substantial evidence in the claimant’s testimony to support the ALJ’s finding that the claimant’s back pain “greatly increased while the claimant was lifting a specific patient at work on or about July 15, 2003.” Therefore, we must uphold the ALJ’s determination that the claimant sustained her burden to prove her subsequent disability and need for medical treatment was causally related to an industrial accident on July 15, 2003.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 23, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Maria Carrillo, Lamar, CO, Karen Bryant, Prowers Medical Center, Lamar, CO, Colorado Hospital Association, c/o Mary Ann Donelson, Support Services, Inc., Greenwood Village, CO, Stephen M. Johnston, Esq., Pueblo, CO, (For Claimant).
Susan K. Reeves, Esq. and T. Paul Krueger, II, Esq., Colorado Springs, CO, (For Respondents).