W.C. No. 4-295-736Industrial Claim Appeals Office.
June 16, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ). which denied and dismissed his claim for workers’ compensation benefits. The claimant contends that the ALJ erroneously determined that he failed to prove a compensable injury. We disagree, and therefore, affirm.
The claimant alleged that on April 12, 1995, he sustained compensable injuries to his neck and shoulders while removing a set of tires from a bus. The claimant testified that despite the injuries, he finished his work shift on April 12 and worked on April 13. He did not work on April 14 or April 15. However, on April 15, the claimant was treated at the Veterans Affairs Medical Center (VAMC) for complaints of shoulder pain. According to the April 15 VAMC report, the claimant denied any specific trauma and gave a history of shoulder pain for two weeks. The report also indicates that the claimant said he had been lifting weights for two weeks. The claimant was subsequently treated by Dr. Kleiner and Dr. Regan. On May 8, 1996, the claimant notified the employer of the alleged injury.
The ALJ found the claimant’s testimony concerning the alleged injury to be incredible. The ALJ also rejected the opinions of Dr. Kleiner and Dr. Regan because the claimant did not tell these providers about his weight lifting activities. Instead, the ALJ was persuaded that the April 15 VAMC report is consistent with a weight lifting injury. The ALJ also found that the claimant told his co-worker, Robert Davis that he injured himself lifting weights. Consequently, the ALJ determined that the claimant failed to sustain his burden to prove that his shoulder and neck problems are the result of a compensable injury.
On review, the claimant contends that there is no evidence to refute his account of the industrial injury. The claimant also contends that his account is supported by medical records of Dr. Kleiner and Dr. Regan. Therefore, the claimant argues that the record compelled the ALJ to find a compensable injury. We disagree.
It was the claimant’s burden to prove by a preponderance of the evidence that he sustained injuries arising out of and in the course of his employment, and the determination of whether the claimant sustained this burden was a question of fact for the ALJ City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). On review, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
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). Accordingly, the issue on review is whether there is substantial evidence to support the ALJ’s determination, not whether the record contains some evidence which, if credited, might support the opposite result. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Moreover, in applying the substantial evidence test, we may not substitute our judgment for that of the ALJ in assessing the credibility of the witnesses, and the probative value of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). In this regard, we note that the ALJ was not required to credit the claimant’s testimony, or the medical opinions of Dr. Regan and Dr. Kleiner, even if undisputed. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
The claimant’s arguments notwithstanding, the ALJ findings of fact are supported by substantial evidence in the record. See
(Tr. pp. 16-17, 25, 27, 32). These findings also support the ALJ’s determination that the claimant failed to prove a causal connection between his employment and his shoulder and neck problems. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996) (ALJ findings may be based on inferences from circumstantial evidence). Under these circumstances, we have no basis for interfering with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 24, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 16, 1997 to the following parties:
Joell Smith, 1257 Vine St., #106, Denver, CO 80206
Barry Reiling, Laidlaw Transit, Inc., 6345 N. Colorado Blvd., Commerce City, CO 80022
Alexander Howard, Adjuster, Crawford Co., 12301 Wilshire Blvd., #500, Los Angeles, CA 90025
Vincent M. Balkenbush, Esq., 3773 Cherry Creek Dr. N. #280, Denver, CO 80209 (For the Claimant)
Karen Gail Treece, Esq. James B. Fairbanks, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondent)
By: ________________________________