W.C. No. 4-651-149.Industrial Claim Appeals Office.
June 5, 2006.
FINAL ORDER
The respondents seek review of an order dated December 16, 2005 of Administrative Law Judge Jones (ALJ) that determined that the claimant sustained her burden of proof to establish a work related injury and awarded temporary total disability (TTD) and medical benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. On April 20, 2005 the claimant injured herself in the course and scope of her employment when she was lifting a patient. The claimant experienced pain and stiffness in her low back. The claimant reported the accident to her supervisor and prepared a first report of injury. The claimant continued to work for the employer. On May 24, 2005, a regularly scheduled day off, the claimant began experiencing severe debilitating pain in her back. The claimant had no precipitating event, which caused the pain on May 24, 2005. The claimant contacted her physician to seek attention. The claimant contacted her employer to inform them that she was disabled by the injury she suffered on April 20, 2005. The claimant’s pain was so severe that she contacted 911 in order to obtain an ambulance ride to the emergency room at St. Anthony’s Hospital. The claimant remained off work until June 1, 2005 when she sought treatment from the employer’s authorized treating physician (ATP). The ATP diagnosed lumbar and thoracic strain, referred the claimant for physical therapy, and imposed work restrictions. The claimant was later contacted by the office of the ATP and advised that her appointments were cancelled because the employer was contesting liability and denying further medical treatment. The claimant selected her personal physician from whom she received ongoing medical treatment. The claimant was off work various dates because of the work injury.
Based on these facts the ALJ found that the claimant sustained her burden of proof to establish a work-related injury occurring on April 20, 2005. The ALJ found the claimant’s testimony about the mechanism of her injury and its progression was more credible and persuasive than the testimony and evidence to the contrary. The employment and medical reports were found by the ALJ to support the claimant’s contention that she suffered a work injury and was entitled to medical and TTD benefits. The respondents’ contend that in finding the claim compensable the ALJ committed evidentiary errors and misapplied the applicable law. We disagree.
Because the issue of causation is factual in nature, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. This standard of review requires deference to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Further, the ALJ’s order is sufficient if the basis for her determinations is apparent from the findings Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Contrary to the respondents’ arguments, the record contains substantial evidence supporting the ALJ’s conclusion that the claimant did sustain a work related injury. In weighing the competing evidence, as it was her prerogative to do, the ALJ expressly credited the testimony of the claimant. Although the respondents question the basis on which the ALJ determined that the claimant’s testimony was credible, our authority to disturb the ALJ’s weighing of the evidence is extremely limited. Metro Moving Storage Co. V. Gusset, 914 P.2d 411, (Colo.App. 1995).
The respondents also contend that conflicts in the evidence are not resolved. The respondents list in detail a number of examples from the evidence that they deem self-contradictory prior statements with the claimant’s testimony at hearing. We have reviewed the respondents’ examples of claimed contradictory statements and the evidence does raise questions of credibility. However, as noted by the respondents and the claimant, the ALJ’s credibility determinations are binding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact-finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Under these circumstances, we cannot say the ALJ erred as a matter of law in relying on the claimant’s testimony and in granting the claim for workers’ compensation benefits related to the claimant’s back condition.
The respondent’s reliance on Willis v. Craig Hospital, W.C. 4-627-742 (February 13, 2006) is misplaced. In Willis the claimant, while at work, merely turned and felt severe pain in her knee. The claimant had testified that she had experienced previous problems with her left knee, including a surgical total knee replacement. The ALJ found that the claimant did not carry her burden to prove by a preponderance of the evidence that there was a direct causal relationship between the employment and the injury. In contrast in the present case there was testimony was that the claimant as a LPN, was required to assist in the transfer of a patient and was injured while lifting the patient. The ALJ found that the claimant injured herself in the course and scope of her employment. The record contains sufficient evidence to satisfy the claimant’s burden to prove that there was a direct causal relationship between the employment and the injury.
The respondents next argue that the ALJ applied an improper legal standard because she concluded that, “No persuasive evidence was presented that an intervening event severed the causal connection between the work injury and the claimant’s subsequent disability.” Specific Findings of Fact, Conclusions of Law, and Order. (Order) at 4 ¶ 1. We disagree.
The ALJ applied the correct legal standard. She noted that a claimant in a workers’ compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. She also correctly cited § 8-43-201, C.R.S. 2005, relied upon here by the respondents. The ALJ specifically noted that the facts in a workers’ compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer and that in a workers’ compensation case is to be decided on its merits. Order at 3-4. As we read the ALJ’s order, in mentioning the lack of an intervening event, she was merely eliminating one possible explanation for the claimant’s back condition. Her order indicates that she understood the correct legal standard and we do not construe the order as impermissibly shifting the burden or proof or persuasion.
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. 2005 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 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)
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Cincerri Fleetwood, Lakewood, CO, Sandra Bocanegra, Thornton, CO, Walter Sackett, Highmark Healthcare, Thornton, CO, Bob Sutton, Mechanicsburg, PA, Christina Dodson, Liberty Mutual Insurance Company, Irving, TX, Mark D. Elliott, Esq., Arvada, CO, (For Claimant).
Benjamin P. Kramer, Esq., Denver, CO, (For Respondents).