IN THE MATTER OF THE CLAIM OF ABRAHAM BAKHAJIAN, Claimant, v. SPEEDY HEAVY HAULING, INC., and Employer, ZURICH AMERICAN INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-780-027.Industrial Claim Appeals Office.
December 16, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated May 18, 2009, that denied and dismissed the claim for workers’ compensation benefits. We affirm.

The claimant alleged he sustained injuries to his back and neck while shoveling dirt for his employer on November 30, 2008. The claimant testified that the sudden onset of pain in his back caused him to fall injuring his neck. The ALJ concluded that the claimant failed to prove it was more probably true than not that he sustained any injury on November 30, 2008. Therefore, the ALJ denied and dismissed the claim for workers’ compensation benefits.

Pursuant to § 8-43-301(8), C.R.S. 2009, the claimant filed a petition to review. However, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). The petition to review contends that the evidence is uncontroverted that the claimant was instructed to use a shovel to move dirt for the employer on the day in question. The claimant argues that witnesses saw the claimant using the shovel, and the claimant reported an injury to medical providers related to the claimed accident. The claimant argues he has physical injuries diagnosed by medical professional contemporaneous to the claimed accident. Therefore, the claimant concludes his argument by contending that credibility or lack of credibility as to the severity of his symptoms should not affect the fact that the injury did occur.

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As we understand the claimant’s Petition to Review, he argues his lack of credibility as to the severity of his symptoms should not result in a determination that the claimed injury did not occur. The claimant does not appear to contest the finding of his lack of credibility. In any event, the ALJ’s credibility determinations are binding except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it Arenas v. Industrial Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000).

To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his claimed back and neck injuries arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

Here the ALJ made the following findings of fact with support in the record. The claimant’s immediate supervisor testified that he observed the claimant for 30 minutes after giving him the shovel. Tr. at 19. The supervisor testified that he never saw the claimant fall and the claimant did not actually shovel the dirt, but instead used the shovel as if it were a broom. Tr. at 19-21. The ALJ found the supervisor credible. Statements from the claimant’s co-workers established that none of them saw the claimant fall while shoveling dirt. Exhibit B. There was no credible or persuasive evidence that the claimant immediately reported any neck or back injuries to his supervisor. Tr. at 20. The claimant did not immediately report his claimed injury despite the fact that he alleged the acute onset of back pain and a fall to the ground resulting in neck pain. Tr. at 20. Rather the evidence established that after the conclusion of the workday while driving from the job site the claimant mentioned that his back hurt and he believed he injured it while shoveling dirt. Tr. at 20; Exhibit B.

Moreover, the ALJ found that on balance, the medical records tend to contradict the claimant’s testimony that he sustained an injury or injuries while shoveling dirt. At the emergency room the claimant gave a history of back and neck pain after shoveling, but did not mention any fall and consequent injury to his neck. Exhibit 2. On December 1, 2008 the claimant was examined by Dr. Oliver. Exhibit 3. Dr. Oliver’s notes do not

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mention that the claimant fell and injured his neck. Exhibit 3. Dr. Oliver assessed acute lumbosacral and cervical muscle strains and released the claimant to full duty and full activity. Exhibit 3. Dr. Oliver noted that it appeared the muscle strains had resolved. Exhibit 3. The claimant did not return to work on December 2, 2008; rather the claimant sought additional treatment from Dr. Oliver who declined to provide further treatment. Tr at 10-11. The claimant advised Dr. Kroner that he developed neck and back pain while shoveling frozen dirt, but did not mention that he fell. Exhibit D. Dr. Kroner noted that the claimant reported “severe” pain, but undressed himself with ease and could rise from a lying position with ease. Exhibit D. Dr. Kroner opined that the claimant’s symptoms were somewhat exaggerated as compared to neurologic findings. Exhibit D. Dr. Steinmetz opined that there was no likelihood that the claimant was injured on the job as claimed because there was a questionable mechanism of injury, the claimant is an unreliable and inconsistent historian, and the objective findings do not support the conclusion that the claimant was injured as he testified. Tr. at 34-39. The ALJ found Dr. Steinmetz to be credible and persuasive.

In our opinion, the ALJ did not, as contended by the claimant, deny the claim based solely on his finding of the claimant’s lack of credibility. Here the claimant’s lack of credibility certainly played a role and we note might on its own be sufficient to support a denial. However, the ALJ considered the medical record, the testimony of the claimant’s supervisor and statements of co-employees. The ALJ concluded that the claimant failed to prove that he sustained any injuries arising out of and in the course of his employment. In our view, there is substantial evidence in the record to support this determination.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 18, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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ABRAHAM BAKHAJIAN, BROOKLYN, NY, (Claimant).

SPEEDY HEAVY HAULING, INC., Attn: PATTY KELLY, GRAND JUNCTION, CO, (Employer).

ZURICH AMERICAN INSURANCE COMPANY, Attn: ALLEN HECKER, COLORADO SPRINGS, CO, (Insurer).

IRWIN BOESEN, PC, Attn: LANE N. COHEN, ESQ., DENVER, CO, (For Claimant).

THE KITCH LAW FIRM, PC, Attn: MICHELLE L. PRINCE, ESQ., EVERGREEN, CO, (For Respondents).

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