W.C. No. 4-817-017.Industrial Claim Appeals Office.
March 1, 2011.
FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Felter (ALJ) dated November 24, 2010 that found the claimant sustained a compensable injury and ordered the respondents to pay temporary total disability benefits, interest, and medical expenses. We affirm.
The ALJ initially awarded the claimant benefits in an order dated August 16, 2010. The respondents appealed and the ALJ issued a supplemental order to address the respondents’ contention that the ALJ abused his discretion concerning his findings about the claimant’s credibility.
Several of the ALJ’s findings of fact in his supplemental order are summarized as follows. The claimant worked as a truck driver. He performed his duties equipped with a prosthesis on his right leg. The claimant was not credible regarding his account of falling from a truck in the yard on February 9, 2010. However, the claimant was credible when he testified that he fell from his truck during a stop on Kenosha Pass. The ALJ reviewed video tapes of the claimant and did not find the claimant performing strenuous activity or otherwise violating his medical work restrictions. The ALJ therefore found that the claimant sustained a compensable injury to his lower left extremity while exiting his truck on Kenosha Pass.
The ALJ ordered the respondents to pay for certain medical treatment and for temporary total disability benefits.
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The respondents contend that the ALJ erred in making certain findings. Specifically, the respondents argue that the ALJ abused his discretion in making his findings concerning the claimant’s credibility. The respondents further assert that the ALJ failed to resolve inconsistencies in the evidence. Finally, the respondents argue that the ALJ’s findings regarding the surveillance video are not supported by the evidence. The ALJ’s factual findings reflect permissible inferences from the record. We therefore affirm the ALJ’s determination that the claimant sustained a compensable injury and is entitled to benefits.
An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
The determination of whether an injury is compensable presents a question of fact for resolution by the ALJ based on the preponderance of evidence standard. As such, of course, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Our scope of review, therefore, is “exceedingly narrow.” Id.
The ALJ considered the claimant’s competing explanations as to how he became injured and found “that although the Claimant was not credible about falling in the yard, he was credible concerning his fall on Kenosha Pass.” Supplemental Order at 2, ¶ 4. The ALJ was free to credit those portions of the conflicting testimony and evidence that he found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (to the extent testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony). It was for the ALJ to resolve any inconsistencies in the claimant’s testimony and give it such weight and credibility as the ALJ determined was appropriate. See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993) (ALJ may credit all, or only part of a witness’ testimony). Furthermore, the mere fact the evidence might support a different result affords no basis for relief on appeal University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001).
The ALJ also credited certain medical evidence to find that the claimant sustained a compensable injury. For example, the ALJ found “highly credible and persuasive” Dr. Watson’s opinion that the claimant’s “description of the mechanism of the accident would be consistent with the injury to his low back” regarding a fall from his truck at Kenosha Pass and that the claimant’s “description of the work incident is consistent with
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a mechanism of injury to the SI joint.” Supplemental Order at 5, ¶ 15. We note that the report referred to by the ALJ includes the following statements:
Mr. Taylor reports that he injured his low back and left SI region when stepping out of a truck during the course of his regular employment. He states that he [sic] truck he was operating was a leased truck. The steps were not in a place common to his usual use, and as he stepped down, he missed a step, the first time falling onto his back but not injuring himself, the second time striking his left leg and developing pain primarily in his left SI region and lumbosacral spine. . . . Mr. Taylor’s description of the mechanism of the accident would be consistent with the injury to his low back. His pain is primarily located in the SI joint with radiation to the left leg. His description of the work incident is consistent with a mechanism of injury to the SI joint. The symptoms into the left leg can be due to referral from the SI joint.
(Emphasis added). Exhibit 1 at 6. The physician’s reference to a second incident in which the claimant struck his left leg and developed pain could be reasonably inferred to relate to the incident on Kenosha Pass as testified about by the claimant. Tr. at 16-19. We conclude that the ALJ’s dispositive findings are supported by substantial evidence and that the ALJ did not abuse his discretion in making his findings.
The respondents argue that the video recordings introduced into the record establish that the claimant violated his medical restrictions by squatting and kneeling, contrary to the restrictions imposed by a nurse and by a doctor. Exhibits B, D, R, S. The ALJ found that the video recordings “do not depict the Claimant doing anything strenuous or otherwise violate his medical restrictions” and did not find the recordings “persuasive to contradict . . . [Dr. Watson’s] opinions and medical restrictions.” Supplemental Order at 5, ¶ 16. We note that the video recordings show the claimant kneeling and, possibly, squatting a few times. However, it is apparent that the ALJ was not persuaded that the claimant was shown to function contrary to Dr. Watson’s opinion and the claimant’s testimony that the claimant sustained a compensable injury. Furthermore, we may not interfere with the ALJ’s decision to credit the testimony of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, certain evidence the ALJ would err as a matter of law in crediting it Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000). That is not the case here.
The claimant requests its attorney fees and costs incurred in defending against the respondents’ prosecution of this appeal. Section 8-43-301(14), C.R.S. indicates that
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attorney fees and costs may be awarded against an attorney who submits a petition to review or brief in support of a petition which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Although we do not agree with the respondents’ arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they it may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997); Brandon v. Sterling Colorado Beef Co., 827 P. 2d 559 (Colo. App. 1991) (resort to judicial review is not considered frivolous or in bad faith as long as there is a reasonable basis for party to challenge the ALJ’s order).
IT IS THEREFORE ORDERED that the ALJ’s supplemental order dated November 24, 2010 is affirmed.
IT IS FURTHER ORDERED that the claimant’s request for an award of attorney fees and costs is denied.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
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ZANE TAYLOR, WESTMINSTER, CO, (Claimant).
LOGISTICS MANAGEMENT, GOLDEN, CO, (Employer).
ACUITY INSURANCE COMPANY, Attn: SANDRA HERWIG, SHEBOYGAN, WI, (Insurer).
FOGEL, KEATING, WAGNER, POLIDORI, SHAFNER, PC, Attn: BRADLEY R. UNKELESS, ESQ., Denver, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: TRENT E. RINEBARGER, ESQ./BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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