W.C. No. 4-657-392.Industrial Claim Appeals Office.
November 8, 2006.
ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated May 24, 2006 that determined the claimant had suffered a work related injury and ordered payment of temporary total disability (TTD) and certain medical benefits. We affirm the order in part, set it aside in part and remand for entry of a new order.
The pertinent findings of the ALJ are as follows. On July 27, 2005 while working for the employer the claimant was stepping down from a step ladder, expecting to step on the first ladder rung, but instead stepped all the way to the floor, landing, hard on her right leg. The claimant felt immediate pain in her hip, but the pain subsided. The claimant continued working during the day and gradually developed pain in her right hip, buttocks, and pain down the right leg to her knee. The next day the claimant woke up in severe pain and had difficulty walking. She notified her supervisor and filed an employee’s report of injury dated July 28, 2005. The claimant’s supervisor affirmed that the claimant’s account of her injury was consistent with the report the supervisor had received. The claimant never returned to work for the employer after July 27, 2005, because the employer had no work for the claimant within her restrictions. The employer referred the claimant to Concentra. Medical reports from Concentra, dated July 28, 2005, contained information consistent with the claimant’s first report of the injury concerning the mechanism of injury. Work restrictions were imposed on the claimant.
The ALJ concluded that the claimant sustained her burden of proof to establish that she suffered a work injury on July 27, 2005, when she stepped off a step ladder and injured her right hip and lower extremity. The ALJ determined that the claimant had established that she was disabled from her usual employment and was entitled to TTD from July 27, 2005 and ongoing. The ALJ further determined the claimant was entitled to reasonable, necessary and related medical benefits for the July 27, 2005 work injury.
The petition to review contains only general allegations of error, derived from § 84-3-301(8), C.R.S. 2006. The brief in support of the petition to review does not specify the alleged errors made by the ALJ, but rather repeats the arguments made to the ALJ in the respondents’ post-hearing position statement. The respondents argued at the hearing and in their position statement that the claimant was not credible and that the medical record does not support the claim. We are unpersuaded that the ALJ erred in finding the claimant sustained her burden of proof to establish that she suffered a work injury on July 27, 2005.
The claimant had the burden to prove that her 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. 2006. 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (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).
Here, the ALJ’s order is supported by substantial evidence. The claimant testified that on July 27, 2005 she injured herself stepping off a stool in the course of her employment. Tr. at 18 19. The compensability of the claimant’s injuries is also supported by a medical report from Concentra dated July 28, 2005, which relates a history of the claimant stepping of a ladder in a wrong direction. Exhibit 3 at 3 12. In addition Dr. Thompson’s report states that the claimant sustained a lumbosacral strain with right leg radiation of symptoms caused by the “wrong step” off the step ladder. Exhibit 5 at 54. Further, Dr. Lockwood opined that there appeared to be a causal relationship between the claimant’s objective clinical and diagnostic findings and the July 27, 2005 accident. Exhibit 9 at 91. The ALJ’s determination that the claimant met her burden to prove a compensable injury is supported by substantial evidence and is, therefore, binding on appeal. Dover Elevator Co. v. Industrial Claim Appeals Office, supra; Durocher v. Industrial Claim Appeals Office, supra.
The respondents in their position statement pointed out conflicting ways the claimant had described her physical symptoms and evidence of symptom magnification. However, as noted, weighing the evidence and resolving any inconsistencies is solely the prerogative of the ALJ. And, of course, the existence of evidence which, if credited, might permit a contrary result affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Under § 8-43-301(8), we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. Here, we perceive no basis on which to set aside the ALJ’s determination that the claimant sustained a compensable injury.
However, the ALJ found the respondents liable for TTD from July 28, 2005 and ongoing until appropriately terminated by law. The claimant has conceded that she is only entitled to temporary partial disability benefits during the time she worked at another employer from August 22, 2005 through October 3, 2005. Given the circumstances the matter must be remanded to determine the amount of temporary partial disability due the claimant. Otherwise we are unpersuaded by the respondents’ arguments on TTD.
Finally, at the time of the hearing and again in their position statement the respondents argued that certain of the medical care the claimant received was not authorized. The ALJ entered a general order directing the respondents to pay for reasonably necessary and related medical benefits. However, for reasons that are not clear from the record, the ALJ failed to address the respondents’ assertion regarding authorization. The claimant argues that authorization is a factual determination to be made by the ALJ and we agree. However, we do not read the order as having reached the issue of authorization. “Authorization” refers to the physician’s legal authority to treat, and is distinct from whether treatment is reasonable and necessary within meaning of § 84-2-101(1)(a) C.R.S. 2006. Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993); Miller v. Ampex Corporation W.C. No. 3-871-572 (May 21, 1998); see §8-43-404(5)(a), C.R.S. 2006. Thus, a general order directing the respondents to pay for reasonably necessary and related medical benefits does not resolve the issue of authorization. Given these circumstances it is necessary to remand the cause with directions that the ALJ consider the question of what medical care was authorized.
The claimant has moved for an award of attorney fees on the grounds that this appeal filed by the respondents is frivolous. We deny the request for attorney fees. Although § 8-43-301(14), C.R.S. 2006 authorizes an award of attorney fees and costs under certain circumstances, such an award is not appropriate if there is a reasonable basis for the appeal. BCW Enterprises Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). Although we disagree with some of the respondents’ arguments on appeal, we do not view them to be frivolous. Baker v. BV properties, LLC., W.C. No. 4-618-214 (August 26, 2005) Fleetwood v. Highmark Healthcare W.C. No. 4-651-149 (June 5, 2006).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 24, 2006, is remanded for further proceedings on the issue of authorization of medical benefits and modification of the award of temporary disability benefits for the period from August 22, 2005 through October 3, 2005.
IT IS FURTHER ORDERED that the ALJ’s order dated May 24, 2006, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
Merrie Bowman, Loveland, CO, Westaff, Inc., Fort Collins, CO, Westaff, Inc. Cheryl Schaefer, Walnut Creek, CA, St. Pauls Travelers, Douglas Daufeldt, Denver, CO, Julie D. Swanberg, Esq., Denver, CO, (For Respondent).
Law Office of Matt Busch, W.M. Busch, Jr, Esq., Loveland, CO, (For Claimant).