W.C. No. 4-350-366Industrial Claim Appeals Office.
August 24, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant temporary disability and medical benefits. The respondents argue that the record lacks substantial evidence to support the ALJ’s finding that the claimant’s disability and need for treatment is causally related to the industrial injury. We affirm.
The ALJ credited the claimant’s testimony that he injured his right arm on July 16, 1997, while pulling it away from a falling grain bin. Moreover, the ALJ credited the claimant’s testimony that, by August 1, 1997, pain in the arm rendered him unable to work.
The ALJ recognized that there was conflicting evidence concerning whether or not the July 16 injury was the cause of the claimant’s subsequent disability. However, the ALJ was unpersuaded by the respondents’ evidence because the claimant’s testimony was supported by the medical record. Moreover, as the ALJ pointed out, even the respondents’ witnesses did not deny that an injury occurred on July 16. Thus, the ALJ awarded temporary disability benefits and medical benefits commencing August 1, 1997.
On review, the respondents contend there is not substantial evidence to support the ALJ’s finding of causal relationship between the July 16 injury and the August 1 disability and need for treatment. In support, the respondents point out that several witnesses contradicted the claimant’s testimony concerning the exact time of the accident, whether the accident caused the claimant to “slow down” his work, and whether the claimant subsequently reported pain. The respondents also rely on the fact that the claimant was able to continue working until July 25, 1997. Finally, the respondents argue that the evidence compels the conclusion that “something happened” to the claimant between the time he left work and the time he became disabled on August 1. We disagree.
The question of whether an industrial injury is the cause of a disability and subsequent need for treatment is generally one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). It is true the claimant had the burden of proof to establish causation, and that the ALJ was not permitted liberally to interpret the facts “in favor of either the rights of the injured worker or the rights of the employer.” Section 8-43-201, C.R.S. 1997. However, it was for the ALJ “to determine the persuasive effect of the evidence and whether the burden of proof” was met. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Because the issues of burden of proof and causation are factual, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, it was for the ALJ to assess the weight, credibility, and inferences to be drawn from the evidence concerning causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The existence of substantial evidence does not depend on the number of witnesses appearing in support of a particular proposition, but on the weight of the evidence considered as a whole. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961). Moreover, the testimony of a particular witness may not be considered incredible as a matter of law unless overcome by hard, certain evidence directly contrary to the testimony. Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986).
The respondents’ argument notwithstanding, the ALJ’s order does not reflect a misapplication of the burden of proof. The ALJ did not interpret the facts “liberally” in favor of the claimant, but merely found the claimant’s testimony and evidence more persuasive than that presented by the respondents. As the ALJ recognized, the claimant’s testimony concerning his disability was corroborated by the medical records. Moreover, even the respondents’ witnesses corroborated the claimant’s testimony that an incident occurred on July 16, and that the claimant injured his arm.
The mere fact that the respondents produced more witnesses than the claimant, and that these witnesses contradicted some details of the claimant’s testimony, did not require the ALJ to accept the respondents’ theory of the case. As the ALJ recognized, the respondents failed to produce any evidence that the claimant sustained an injury after July 16 which would explain the disability commencing August 1. Moreover, some of the witnesses relied upon by the respondents admitted that their recollection of events was less than perfect. (Tr. pp. 43, 51).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 5, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 24, 1998 to the following parties:
David Deherrera, P.O. Box 261, Antonito, CO 81120
Georgia Cook, Alcon Construction, 12233 Road 5 South, Alamosa, CO 81101
Matthew Pahl, Liberty Mutual Ins. Co., 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
William Martinez, Esq., 700 Main St., Alamosa, CO 81101 (For the Claimant)
Jeanne M. Labuda, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
By: _______________________