W.C. Nos. 4-233-368, 4-233-370Industrial Claim Appeals Office.
October 16, 1996
FINAL ORDER
Respondents AJR Farms, Inc., and TIG Fairmount Insurance Company (respondents), seek review of a final order of Administrative Law Judge Gandy (ALJ) which held them liable for an injury occurring on January 14, 1993. We affirm.
The claimant testified that, on January 14, 1993, he injured his stomach when he slipped and fell on a fence. The claimant stated that he reported this injury to the “manager.” The claimant also indicated that he experienced continuing stomach problems until he was diagnosed with a hernia in November 1994.
The ALJ found the claimant’s testimony credible. Thus, the ALJ ordered the respondents to pay medical benefits and temporary disability benefits associated with the surgical hernia repair which occurred in January 1995.
On review, the respondents only contention is that the ALJ erred in finding that the claimant’s testimony was credible. In support of this assertion, the respondents point out that the claimant’s testimony that he frequently spoke Spanish with supervisors was contradicted by the testimony of other witnesses. The respondents also rely heavily on the fact that a medical report, dated November 30, 1994, reflects that the claimant gave a history of suffering an abdominal injury on “January 14, 1994,” and this injury was “exacerbated” by hauling meat at Monfort. Finally, the respondents cite the claimant’s delay in seeking treatment for the hernia. We perceive no error.
The question of whether the claimant sustained the hernia as a result of falling on a fence on January 14, 1993 was a factual matter for determination by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the issue is factual in nature, we are obliged to uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We may interfere with a credibility determination only if the disputed testimony is overcome by hard, certain evidence directly contrary to the testimony, such that an ALJ would err as a matter of law in believing the testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The respondents’ arguments notwithstanding, we do not find the claimant’s testimony incredible as a matter of law. Although other witnesses contradicted the claimant’s testimony concerning how often he spoke Spanish, those witnesses did not directly contradict the claimant concerning the circumstances of the injury. Moreover, the witnesses who testified in opposition to the claimant arguably had interests in conflict with the claimant, and in two cases had been involved in a dispute with the claimant. Thus, the motivation of these witnesses was subject to question, and the ALJ was not obliged to credit their testimony. In any event, the ALJ could credit parts of the claimant’s testimony without crediting the whole. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
It is true that the medical record from November 1994 mentions that the injury occurred in January 1994, not 1993 as stated by the claimant. However, the claimant testified that he told the medical providers that the injury occurred in 1993. (Tr. p. 27). Therefore, the ALJ could logically conclude that the medical record was mistaken, and we may not interfere with that resolution of the conflicting evidence.
It is also true that the November 1994 medical record refers to an “exacerbation” which occurred at Monfort. However, the word “exacerbation” is equivocal, and the ALJ need not have concluded that the work at Monfort did anything more than elicit symptoms of the already existing injury. Moreover, the claimant’s delay in seeking treatment was merely one factor for the ALJ to consider.
Insofar as the respondents have made other arguments, they pertain to the weight and credibility of the evidence. Therefore, these arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 6, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed October 16, 1996 to the following parties:
Graciano R. Gutierrez, 2074 8th St., #1, Greeley, CO 80631
Monfort of Colorado, Inc., Attn: Dana Winter-Wilson, P.O. Box G, Greeley, CO 80632
A.J.R. Farms, Attn: Jay Hop, 27294 Weld County Road, #47 1/2, Greeley, CO 80631
Peschel’s Dairy, Inc., 20306 Weld County Rd., #39, LaSalle, CO 80645
Ginger Cook, TIG Insurance Co., P.O. Box 17005, Denver, CO 80217
John M. Connell, Esq., 1290 Broadway, Ste. 705, Denver, CO 80203 (For Peschel’s Dairy)
Andrew Bantham, Esq., 2629 Redwing Dr., Ste. 330, Ft. Collins, CO 80526 (For Monfort, Inc.)
Richard K. Blundell, Esq., 800 8th Ave., Ste. 202, Greeley, CO 80631 (For the Claimant)
Jeanne M. Labuda, Esq., 6400 S. Fiddlers Green Cir., #1270, Englewood, CO 80111 (For A.J.R. Farms TIG Ins.)
By: ________________________