W.C. No. 4-726-694.Industrial Claim Appeals Office.
April 10, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) dated November 13, 2007, that determined the claim was compensable and that awarded general and specific medical benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed as a bus driver on June 7, 2007, and at approximately 3:45 p.m. was hit in the back of the head by a half-full plastic bottle thrown by someone in a rowdy group of teenagers. The day after the injury, the claimant went from work to the company medical facility and was provided with treatment including a CT scan. The ALJ concluded that the claimant had established by a preponderance of the evidence that she sustained a head injury on June 7, 2007, in the course and scope of her employment and was entitled to medical care to cure and relieve the effects of that head injury.
The respondents contend that the findings of fact entered by the ALJ are not supported by the record. We disagree.
The claimant had the burden to prove that her alleged disability was proximately caused by an injury arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2007. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and her determination 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
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conclusion without regard to the existence of conflicting evidence Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2007. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record.
The respondents argue that the ALJ found the claimant was hit in the head by a half-full plastic bottle but that, in fact, the claimant testified that it was about two thirds of the way full. Tr. 43. We note that the claimant also testified that the bottle was “partially full.” Tr. 43. To the extent this represents an irregularity between the testimony and the finding by the ALJ it is, in our opinion, harmless error § 8-43-310, C.R.S. 2007 (harmless error standard for review of workers’ compensation cases).
The respondents also argue that a review of video evidence showing the passengers in the bus does not reveal a group of rowdy teenagers at the back of the bus. However, the video introduced into evidence started at 3:51 p.m. and the claimant testified that she was hit on the head at 3:45 p.m. Tr. 11. We note also that the worker’s claim for compensation listed the time of the bottle incident at 3:45 p.m. Exhibit B. In our opinion, therefore, the video evidence did not compel the ALJ to find against the claimant.
The respondents also argue that Dr. Updike opined that there was an issue of the work relatedness of the case because the claimant did not remember being hit in the back of the head, which the doctor stated is unusual given that she remained conscious during the entire event. Exhibit G. However, we note in addition that Dr. Updike diagnosed the claimant as having suffered a concussion with no loss of consciousness and postconcussion syndrome. He also ordered a diagnostic CT scan of the claimant’s head and placed work restrictions on the claimant. Exhibit 3. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent, expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). In this regard, we do not view Dr. Updike’s report as compelling a determination against the claimant.
The respondents further contend that conflicts in the evidence are not resolved in the record. The respondents argue that a comparison of the video with the claimant’s testimony demonstrates conclusively that the claimant’s testimony was false. The
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respondents note that the claimant testified there was a group of rowdy teenage males dressed in black. The respondents further contend that the video contravenes this testimony and establishes that there was not a group of teenagers dressed in black being rowdy on the bus. The video does reveal the presence of some young people on the bus but it is difficult to tell the exact color of their clothing. Although the video may be interpreted as contradicting the claimant’s testimony concerning the rowdy teenage males, the essential issue remained as to whether the claimant was hit on the head. We cannot say that here, the claimant’s testimony was rebutted by such certain evidence that we could say the ALJ erred as a matter of law by believing it. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
It is true, as the respondents note, that the ALJ did not enter specific findings concerning the claimant’s credibility. The ALJ’s only comment on the video was that she found it not particularly informative. However, we note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law, provided the basis of the order is clear from those findings that are entered. We may also consider findings and conclusions, which are implicit in the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Here it is implicit in the ALJ’s order that she found the claimant to be credible and in our view it was unnecessary for her to expressly note that determination in her order. It is clear from her order that the ALJ was unpersuaded by the video evidence. We have no basis for disturbing the ALJ’s assessment of the credibility and probative value of the evidence. Although there was conflicting evidence produced at the hearing, the findings are 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).
The respondents also contend that the decision of the ALJ is not supported by the record or the applicable law. The respondents point out that the video showed passengers leaving the bus voluntarily and calmly as compared to the claimant’s testimony that she discharged her attackers with a stern warning. Tr. at 40. However, the existence of evidence, which, if credited, might support a determination contrary to that reached by the ALJ, does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ did not explain in detail why she found the video not particularly informative. However, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is considered to have been implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). It is clear from her order that the ALJ remained unconvinced by the video. To the extent that the claimant’s testimony was inconsistent, the ALJ was free to rely on those portions she found persuasive and to reject other portions. See Colorado
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Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Testimony, which is merely biased, inconsistent, or conflicting, is not necessarily incredible as a matter of law People v. Ramirez, 30 P.3d 807 (Colo.App. 2001).
Here the claimant’s testimony that she was hit by a bottle was not directly and conclusively contradicted by the video, which did not cover the specific period of time during which the claimant alleged that the injury occurred. The ALJ’s findings are sufficient to permit review and we understand the ALJ to have concluded that the claimant’s testimony regarding the bottle-throwing incident was found to be credible. In our view, the video evidence and contradictory evidence presented by the employer witnesses does not compel a finding that the claimant was not credible as a matter of law.
IT IS THEREFORE ORDERED that the ALJ’s order issued November 13, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________ Curt Kriksciun
____________________________ Thomas Schrant
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TONI FITZSIMON, 10260 N WASHINGTON #1317, THORNTON, CO, (Claimant)
FIRST TRANSIT, INC., Attn: SANDY THOMAS, C/O: FIRST GROUP AMERICA, DENVER, CO, (Employer)
NEW HAMPSHIRE INSURANCE CO, Attn: DEBI MCKNIGHT/ANGELA FAISON, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer)
SULLIVAN SULLIVAN MCGUIRE, PC, Attn: PETER MCGUIRE, ESQ., DENVER, CO, (For Claimant)
SENTER, GOLDFARB RICE, L.L.C., Attn: JJ. FRASER III, ESQ., DENVER, CO, (For Respondents)
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