W.C. No. 4-501-234Industrial Claim Appeals Office.
December 13, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied and dismissed the claim for benefits. The claimant argues the findings are not sufficient to support appellate review, the order is not supported by the evidence, and the ALJ erred in relying on the testimony of one of the respondents’ witnesses. We affirm.
The claimant, a construction worker, testified that he injured his left shoulder and left knee on April 6, 2001, when he was knocked from a ladder by a falling “blowpipe.” The claimant testified he immediately reported the injury to a supervisor, and mentioned the injury at a safety meeting the following day.
However, the respondents presented an eyewitness who testified the claimant was not hit by the blowpipe, and did not mention an injury at the safety meeting. Another witness, the employer’s safety manager, testified that he was present at the safety meeting and the claimant did not report any injury.
The ALJ found the claimant failed to prove he sustained any injury arising out of and in the course of the employment. In support, the ALJ found the claimant’s testimony concerning the injury was not credible. The ALJ noted the medical records do not indicate the claimant reported any symptoms of the alleged injury when he was examined for high blood pressure on April 16, 2001. The ALJ also credited the testimony of the respondents’ eyewitness that the claimant was not struck by the blowpipe and was not knocked to the ground.
On review, the claimant alleges the ALJ did not “base her decision on substantial evidence.” Specifically, the claimant argues the ALJ failed to make any findings of fact concerning the credibility of two witnesses who testified in support of the claimant. One witness testified he saw the claimant fall and heard him report an injury to a supervisor. The other witness testified he was present at a safety meeting when the claimant reported an injury from being hit by the blowpipe. The claimant also argues the testimony of the respondents’ eyewitness was inherently incredible because he discussed his testimony with the respondents’ attorney before the hearing and “coordinated” his testimony with statements of two witnesses who did not testify. We find no error.
The claimant had the burden of proof to establish he sustained an injury arising out of and in the course of his employment. The question of whether the claimant satisfied the burden of proof is one of fact for determination by the ALJ. Section 8-43-301(1)(c), C.R.S. 2002; 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. 2002. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 01CA0852, February 28, 2002). Moreover, the ALJ is not required to address every piece of evidence and testimony, and evidence inconsistent with the ALJ’s findings and conclusions is considered to have been rejected. The findings are sufficient to support appellate review if they indicate the legal and factual bases of the decision. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Contrary to the claimant’s contention, it is clear from the ALJ’s order that she determined not to credit the testimony of the claimant’s two witnesses. The claimant’s alleged eyewitness testified that the claimant fell because of a tangled lanyard, not because he was hit by a falling blowpipe. Moreover, this witness admitted he was terminated from employment and filed a discrimination complaint against the employer. Thus, the basis of the ALJ’s refusal to credit this witness is clear from the findings of fact. (Finding of Fact 13).
Similarly, it is clear from the ALJ `s findings that she was not persuaded by the witness who testified the claimant reported an injury at a safety meeting. The ALJ recognized this testimony was contradicted by the employer’s witnesses. (Findings of Fact 11, 12). It is implicit in the ALJ’s order that she chose not to place great weight on the disputed testimony in light of the employer’s evidence.
The claimant asserts the testimony of the employer’s eyewitness was incredible because he admitted discussing his testimony with the respondents’ attorney before the hearing and considered other witness statements. However, testimony is not incredible as a matter of law unless it is in conflict with nature or fully established or conceded facts. Mere bias does not render testimony incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001).
Here, the testimony of the employer’s eyewitness cannot be found incredible as a matter of law. Although the facts that the witness reviewed statements of other witnesses and discussed his testimony with the attorney might bear on credibility, they do not show the testimony to be at odds with nature or established fact. Moreover, the testimony of the witness was corroborated by a prior consistent statement made shortly after the alleged events. The ALJ was free to credit this testimony, and her decision to do so affords no basis for appellate relief.
Insofar as the claimant challenges the overall sufficiency of the evidence to support the order, we find no error. We have reviewed the transcript and documentary evidence, and conclude the ALJ’s findings are supported by substantial evidence. Further, the findings support the ALJ’s determination that the claimant failed to prove a compensable injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 14, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 13, 2002 to the following parties:
Leroy Clay, P. O. Box 1131, Commerce City, CO 80022
Leroy Clay, 6980 Colorado Blvd., Commerce City, CO 80022
Morrison Knudsen Corporation, c/o Al Jerman, Rocky Flats Environmental Technology Site, 10808 Highway 93, Unit B, Bldg. T130G, Golden, CO 80403-8200
Legal Department, Pinnacol Assurance — Interagency Mail
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado