W.C. No. 4-666-108.Industrial Claim Appeals Office.
August 16, 2006.
FINAL ORDER
The claimant seeks review of an order dated March 14, 2006 of Administrative Law Judge Jones (ALJ) that found the claimant had failed to prove that a compensable injury had occurred. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant’s job required him to install, service, test, and repair scales. On October 7, 2005 he was working for the employer installing a truck scale. The claimant used pry bars and a sledge hammer to assist in aligning the scale. The claimant testified that during the mid morning of October 7, 2005 he noticed an irritation in his abdomen, which he described as an uncomfortable sting. There was no sudden onset of this irritation and it was not associated with any specific activity that the claimant was performing.
After installing the scale the claimant traveled back to the employer’s office where the owner saw the claimant as he walked past her. The owner testified the claimant did not mention any pain in his stomach or an injury at work. However, the owner did see the claimant on October 6, 2005, the day before the alleged injury, and she noticed that the claimant was rubbing his stomach and asked him about it. The claimant stated that he had pain and soreness in the area of an incision from a prior surgery.
On October 10, 2005 the owner asked the claimant how his stomach was doing and he replied that it was still hurting and sore. The claimant made no mention of any injury at work. The claimant was aware of the requirement to report injuries occurring at work and admitted that he had four prior workers’ compensation claims. His time sheets disclosed that he had a habit of making specific notations for events which occurred during the day. However, the claimant had made no notation of experiencing an irritation or stinging in his abdomen on his time sheet for October 7, 2005. The claimant worked from October 10 through October 13 doing his usual job. From October 14 through October 19, the claimant went on an elk hunting trip. On returning from his hunting trip the claimant met with the owner and informed her that he had a hernia. At that time the claimant made no mention of any injury at work or that he thought his condition was related to his job.
The claimant saw Dr. Johnell and then informed the owner that his condition was work related. The employer asked the claimant to fill out part of the employer’s first report of injury and the claimant listed the injury as occurring on October 11, 2005 rather than on October 7, 2005, which was the date he alleged at hearing as the date of his injury. The ALJ rejected as not credible the claimant’s contention that the error in dates was caused by his nervousness in filling out the form.
The claimant’s condition was diagnosed as an incisional or ventral hernia. Dr. Johnell testified that such hernias can occur without any specific precipitating incident or event. The claimant’s complaints of soreness, which he voiced to the owner the day before the alleged injury occurred, are consistent with the presence of an incisional hernia. Based upon her factual findings, the ALJ concluded that the claimant had failed to carry his burden of showing a compensable injury. Accordingly, she denied and dismissed the claim.
The claimant appealed and argues that the ALJ misinterpreted the testimony of Dr. Johnell concerning the causation of the incisional hernia, and that she erred in finding that the claimant did not report that he was engaged in heavy lifting on the day of the alleged injury. We disagree that the ALJ committed reversible error.
The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-413-01(1)(c), C.R.S. 2005. 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 conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). 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). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant argues that the ALJ mischaracterized Dr. Johnell’s testimony as indicating that it is extremely difficult, if not impossible, to pinpoint the cause of an incisional hernia, and that normal and everyday activities may cause an incisional hernia. The claimant contends this is an unreasonable interpretation of Dr. Johnell’s testimony, largely because he repeated several times that the most likely cause of an incisional hernia is strenuous physical activity. The claimant points out that Dr. Johnell testified that there generally has to be some physical activity to create an incisional hernia. The claimant directs our attention to other parts of Dr. Johnell’s testimony which support his theory of the case. However, the record also contains the testimony of Dr. Johnell as recited by the ALJ which supports the respondent’s view. Johnell Depo. at 19-22. In resolving inconsistencies the ALJ may credit all, part or none of an expert’s testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. We perceive no error in the ALJ’s reliance on those portions of the testimony of Dr. Johnell that she credited as persuasive. This is particularly so in connection with the lay testimony presented by the employer concerning the timing of the claimant’s reports of abominable pain, which the ALJ also credited as persuasive.
The claimant further argues that the ALJ erred in determining that the claimant did not originally report to Dr. Johnell that he was engaged in heavy lifting at work on October 7, 2005. However, in our opinion the report of Dr. Johnell dated October 26, 2005 constitutes support in the record for this finding. Exhibit K. Dr. Johnell also testified that his office note of October 26 was dictated the same day as the claimant’s visit and reflected the history related to the doctor by the claimant at the time of this visit. Johnell Depo. at 23. It is true, as the claimant notes, that Dr. Johnell subsequently issued a correction to his October 26, 2005 office note on November 7, 2005, indicating that in retrospect he remembered the claimant telling him that he had been doing some heavy lifting at work and that that could have caused the claimant’s condition. Exhibit 2. However, the existence of evidence which, if credited, might permit a contrary result to that reached by the ALJ affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant also argues that the ALJ had accepted the testimony of the claimant that the abdominal bulge occurred on October 7, 2005, and that this finding is inconsistent with the ALJ’s crediting the medical testimony that the hernia was not caused by the claimant’s work duties. See Findings of Fact, Conclusions of Law, and Order at 2, ¶ 5. However, we do not read the ALJ’s order as having found that the bulge occurred as described by the claimant. As we read the ALJ’s order, she merely recited the claimant’s testimony regarding the occurrence of the bulge without finding specifically that the first symptoms of the hernia occurred on October 7th. Rather, the ALJ expressly credited the testimony of the owner of the employer as more credible and persuasive than the testimony of the claimant with respect to the events and occurrences regarding the claimant’s work activities and reports of symptoms. Based upon her factual findings the ALJ concluded that the claimant had failed to prove that he sustained a work-related injury or occupational disease. Her inferences from the record were reasonable ones. Moreover, even if her findings of fact are interpreted as establishing that the bulge first occurred on October 7th, it does not render the medical evidence she relied upon incredible as a matter of law. Contrary to the claimant’s argument, the hypothetical questions posed by the respondents’ attorney were not required to include that date of onset in order to validate the expert’s opinion. The omission of the date of the onset of the hernia merely affects the weight of the expert testimony and provides no relief for the claimant on appeal.
The ALJ’s findings underlying her conclusion that the claimant failed to show a compensable injury or occupational disease are supported by the record. The question of compensability in this case essentially turned upon the ALJ’s resolution of the conflicting evidence. After weighing the competing evidence, she plainly concluded that the claimant failed to carry his burden of showing a compensable injury. We have considered the remainder of the claimant’s arguments and are not persuaded that the ALJ erred.
IT IS THEREFORE ORDERED that the ALJs order dated March 14, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Brian Schledewitz, Windsor, CO, Northern Colorado Scale, Eaton, CO, Sentry Insurance, Attn: Misty Sorenson, Stevens Point, WI, Shawn Langley Esq., Greeley, CO, (For Claimant).
Ted A Krumreich Esq., Denver, CO, (For Respondents).