W.C. No. 4-615-109.Industrial Claim Appeals Office.
March 1, 2006.
FINAL ORDER
The claimant seeks review of an order dated November 3, 2005 of Administrative Law Judge Stuber (ALJ) that found the evidence failed to demonstrate the claimant had suffered an accidental injury arising out of and in the course of his employment with the employer. We affirm.
The claimant testified that he worked for the employer for about one year, performing heavy labor work with stone. He alleged that he was paid in cash and admitted he did not file tax returns and has no documentation that he was an employee of the employer. The employer is no longer in business and has left the jurisdiction.
The claimant testified that he suffered an accidental injury to his neck and low back on July 21, 2003 while pushing a dolly with four or five hearthstones up a sandy slope. He testified that the dolly got stuck in the sand and he fell backwards, landing on his back.
On July 25, 2003, the claimant went to a chiropractor, Adam Smith, D.C., complaining of low back pain and neck tension. (We note that the ALJ’s actual factual finding is that the claimant consulted the chiropractor on July 25, 2003. This error is clearly typographical in nature and it appears undisputed that the correct date is 2003.) The claimant filled out a questionnaire indicating that his injury was caused by slipping and falling in a bath, and that he had suffered the problem since July 21, 2003. The claimant remained off work until August 4, 2003 at which time he returned to regular duty for the employer. The claimant quit his job some time in January of 2004 because of a wage dispute. The claimant filed his worker’s claim for compensation on May 21, 2004.
The claimant testified that after leaving the employer, he performed light work. The ALJ found that surveillance videotape taken on April 12, 2005, demonstrated the claimant shoveling snow and then performing regular duty stucco work. Despite the claimant’s testimony that he had a sheltered work environment, the ALJ found the claimant clearly performed work at a regular production pace and demonstrated no pain behaviors. The claimant’s repeated denial that he was doing any sort of heavy work after he left the employer was contradicted by the investigator and by the surveillance video.
The ALJ found the claimant not credible for several reasons. The medical record of Dr. Smith showed the claimant had attributed his problems to falling in a bathtub. The claimant’s explanation, that his boss told him to say that it happened at home, was found by the ALJ not to be credible. Additionally, the claimant presented the testimony of his friend. However, the friend’s testimony was found not to be credible because he could not remember any details as to how the claimant described the accident or when the conversation took place. In addition this friend’s testimony was rebutted by statements of the respondents’ investigator, and the ALJ found the investigator’s testimony to be credible. Further, the ALJ did not find the claimant’s allegations regarding the mechanism of injury to be credible. Finally, the claimant did not file a claim for ten months after the injury. The claimant testified the delay in filing was because he was afraid of losing his job. However, the ALJ rejected this explanation as not credible because the claimant had quit his job in January 2004, and so from that point the claimant no longer had any incentive to avoid filing a claim.
Under § 8-43-301(8), C.R.S. 2005, we may not disturb the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
To prove a compensable injury the claimant is required to prove that the injuries arose out of and in the course of the employment. § 8-41-301(1)(c), C.R.S. 2005; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant proved his injuries arose out of and in the course of the employment is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. § 8-43-301(8). Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
It is the ALJ’s sole prerogative to determine the weight and sufficiency of the evidence. The ALJ’s credibility determinations are binding unless rebutted by hard, certain evidence to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Therefore, we may not interfere with an ALJ’s credibility determinations except in extreme circumstances. As suggested by the claimant in his brief, there is testimony from the claimant from which the ALJ could have drawn contrary inferences. However, the present case does not, in out opinion, present circumstances which would warrant our disturbing the ALJ’s credibility determinations.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ’s findings are supported by substantial evidence in the record and the findings support the conclusion the claimant failed to prove his injuries arose out of and in the course of the employment relationship. See Alpine Roofing Co. v. Dalton,
36 Colo. App.315, 539 P.2d 487 (1979).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 3, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Gilberto Perez-Cervantes, Colorado Springs, CO, Humberto Rodriguez d/b/a Rodriguez Masonry, Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Barkley D. Heuser, Esq., Colorado Springs, CO, (For Claimant).
T. Paul Krueger, II, Esq. and Charlotte A. Veaux, Esq., Colorado Springs, CO, (For Respondents).