W.C. No. 4-441-132Industrial Claim Appeals Office.
February 21, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which dismissed the claim for workers’ compensation benefits because the claimant failed to prove her symptoms were proximately caused by an injury arising out of and in the course of employment. The claimant argues the ALJ failed to resolve pertinent conflicts in the evidence, and that the findings are not supported by substantial evidence. We affirm.
The claimant testified she sustained an injury to her low back on October 8, 1999, when she bent over to load a dishwasher. However, the ALJ found that, although the claimant sought medical treatment throughout October 1999, the first medical record to mention back pain developing at work was a November 1, 1999 physical therapy report. Moreover, the first medical report which specifically mentions a dishwasher is dated November 19, 1999. The ALJ found the disparity between the claimant’s testimony and the medical records “strongly suggests that the incident did not occur” as the claimant testified.
Moreover, the ALJ credited the opinion of the respondents’ medical expert, who opined the medical records do not support the claimant’s allegations of a work-related injury. The respondents’ expert also opined the act of bending forward “is not a reasonable etiology for a severe lumbar strain.” The ALJ recognized the claimant presented the treating physician’s February 12, 2000 report which states the claimant’s symptoms, originally diagnosed as a kidney stone, “were subsequently found to be secondary to an injury to the lower back/sacral region.” However, the ALJ found the treating physician’s opinion was not persuasive because it does not specifically relate the claimant’s symptoms to the dishwasher incident, and because the ALJ found it was unclear whether the treating physician had made a “final diagnosis.”
In light of these findings, the ALJ determined the claimant failed to prove a compensable injury. Consequently, she dismissed the claim for benefits.
On review, the claimant contends the ALJ failed to resolve pertinent conflicts in the evidence concerning the date on which the claimant reported a work-related injury to two of her supervisors. The claimant reasons that if these conflicts had been considered and resolved in the claimant’s favor, the ALJ might have evaluated the other evidence, including the significance of the medical records, differently. The claimant also argues the ALJ’s finding that the treating physician failed to make a “final diagnosis” is unsupported by any evidence. Finally, the claimant asserts the ALJ failed to address her testimony that she advised several medical providers of the dishwasher incident prior to November 19. We disagree with these arguments.
The claimant had the burden of proof to establish that the alleged injury was proximately caused by an injury or occupational disease arising out of and in the course of employment. Section 8-41-301(1)(c), C.R.S. 2000. The question of whether the claimant carried the burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
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. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). Further, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. The ALJ need not address every piece of evidence or potential conflict where she concludes such issues are not persuasive or determinative. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We reject the claimant’s argument the ALJ failed to resolve a conflict between the claimant’s testimony that she reported a work-related injury to Kelli Asbury on October 9, 1999, and Asbury’s contrary testimony. Indeed, we conclude that Finding of Fact 2 implicitly resolves the conflict in favor of Asbury’s testimony that, although the claimant reported suffering from kidney stones, she did not relate this condition to an injury at work. (Tr. pp. 73-74). Similarly, we view Findings of Fact 12 and 13 as implicitly resolving the conflict between the claimant and Betty Linam concerning when the claimant first reported a specific work-related injury. The ALJ necessarily credited Linam’s testimony that, on November 11, the claimant merely reported that she experienced pain at work and wished to file a claim. (Tr. pp. 88-90). In contrast, the ALJ necessarily rejected the claimant’s testimony that she reported a work-related injury to Linam on October 29. (Tr. p. 98).
The claimant next disputes the ALJ’s finding that it is “unclear” whether the treating physician “has made a final diagnosis.” The claimant argues there is no basis for this finding; therefore, the claimant argues the ALJ failed to give sufficient weight to the opinions of the treating physician. However, the treating physician has made various diagnoses including left-sided sciatic pain, possible early lumbar radiculitis, left-sided sacroiliitis, and right-sided sacroiliitis. The treating physician’s February 12, 2000 report does not contain a definitive diagnosis, but merely states that on October 29, 1999, the claimant demonstrated “signs and symptoms that began to suggest” sacroiliitis. Thus, the ALJ’s finding constitutes a plausible interpretation of the evidence.
We disagree with the claimant’s assertion the ALJ failed to resolve a conflict between the contents of the medical records and the claimant’s testimony that she reported the dishwasher incident to numerous medical providers prior to November 19. It is implicit in the ALJ’s order that she discredited the claimant’s testimony because the ALJ believed that if the claimant had reported the dishwasher incident to medical providers, that history would have appeared in the medical records. The ALJ drew a plausible inference from the record, and we may not interfere with it on review.
Consequently, the ALJ’s finding that the claimant failed to prove an injury causally related to her employment is supported by substantial evidence. The order adequately states the basis of the ALJ’s conclusion, and is not inadequate because of failure to resolve conflicts in the evidence. Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 22, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 21, 2001 to the following parties:
Nancy Baca, P. O. Box 1793, Pueblo, CO 81002
Home Nursing Associates, Inc. d/b/a Primary Home Care, 513 Broadway Ave., Pueblo, CO 81004-2115
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
James M. Anderson, Esq., 559 E. Pikes Peak Ave., #212, Colorado Springs, CO 80903 (For Claimant)
Craig R. Anderson, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
BY: A. Hurtado