W. C. Nos. 4-659-905, 4-659-905.Industrial Claim Appeals Office.
March 15, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 7, 2006 that denied and dismissed the claimant’s claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant alleges he was hired on June 7, 2005 by David Bullock to help repair and paint a sign for the employer’s business on June 8, 2005. The claimant claims he suffered an injury on June 8, 2005, when he fell while on a ladder repairing the employer’s sign, landing on his buttock and suffering injury. Bullock testified he asked the claimant to help on an upcoming sign job for the employer. On the morning of June 7, 2005, the claimant met Bullock near the employer’s premises and helped move ladders and materials. Bullock went inside the employer’s premises to meet with them and when he returned he found the claimant smoking a marijuana cigarette. Bullock immediately told the claimant to leave. The claimant demanded $20 or he would cause trouble for Bullock. The claimant left the work site. Bullock then worked by himself to repair the sign. The claimant alleges that after he fell on June 8, 2005 a male office manager for the employer came to check on him and ask if he needed medical attention. James Hays, the only male employee of the employer testified that nobody fell on June 8, 2005, and that he had never met the claimant until the day of the hearing.
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The ALJ found that the claimant’s testimony was not credible. The ALJ found the testimony of Bullock and Hays was credible. The ALJ found that the preponderance of the evidence failed to demonstrate that the claimant suffered an accidental injury on June 8, 2005. The ALJ denied the claim for compensation .
The petition to review contains general allegations of error, derived from § 8-43-301(8), C.R.S. 2006 and three specific allegations of error. The claimant did not file a brief in support of the petition to review the Supplemental Order. Therefore, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
The claimant first specifically contends that the ALJ did not consider an emergency room report from Memorial Hospital. We disagree. The ALJ noted that on the afternoon of June 8, 2005 the claimant sought care at the Memorial Hospital emergency room for a hematoma of the buttock after having suffered a fall. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 8. However, the ALJ with record support also noted a later report from Memorial Hospital, dated June 29, 2005, reporting that he had suffered low back pain for two years, and had suffered an aggravation a couple of days earlier when he bent and twisted. Exhibit 1 at 15. In our view the ALJ considered the emergency room report, but after considering all of the evidence the ALJ found the claimant had failed to prove by a preponderance of the evidence that he suffered an injury arising out of and in the course of his employment.
The next two specific allegations of error listed in the petition for review are that the claimant denies he smoked marijuana on June 7, 2005, and further denies that Mr. Bullock ask him to leave. In our view the case turned on credibility determinations and the ALJ found the claimant’s testimony was not credible and, conversely, that the testimony of the employer’s witness was credible. The record contains testimony from Bullock supporting the factual findings of the ALJ. Tr. at 45. The record also contains testimony from Hays supporting the factual findings of the ALJ. Tr. at 56-57. 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). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Under these circumstances, we perceive no basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 7, 2006, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
__________________________________ Thomas Schrant
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William Tompkins, 1375 Washington, # 107, Denver, CO 80203
William Tompkins, 2426 Sage, #137, Colorado Springs, CO 80909
William Tompkins c/o William Tompkins, Sr. 425 Fleming Street Colorado Springs, CO 80911
Joan Goldsmith, Esq., 6665 Delmonico Drive, Suite D, Colorado Springs, CO 80910 (For Respondents)
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