W.C. No. 4-695-058.Industrial Claim Appeals Office.
July 17, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated January 12, 2007, that denied and dismissed her workers’ compensation claim. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed as a house cleaner and alleged an injury occurred on Friday, July 28, 2006. The claimant testified that there was a substance on a counter and she had to scrub hard and fast to remove it. While performing this motion she felt a sharp pain in her right wrist and forearm that traveled up her arm to her bicep. The claimant did not express any difficulties to the supervisor who was assigned to work with the claimant on the date in question, nor did the supervisor observe the claimant have any difficulties. The claimant did not work the following Saturday and Sunday. The claimant called the assistant manager on Sunday night and reported that she had hurt herself and had gone to an emergency room, but did not report that she had hurt herself at work. Dr. Geppert and Dr. Nystrom both diagnosed the claimant with bicep tendonitis and attributed that condition to her work for the employer. Dr. Scott noted inconsistencies in the medical history the claimant provided and opined that the claimant’s symptoms were not consistent with bicep tendonitis. Dr. Scott testified that there was no accurate diagnosis of the claimant’s condition and therefore it was not possible to say if the claimant’s condition was the result of scrubbing a counter in the course of her employment. The ALJ found Dr. Scott’s testimony credible and persuasive and determined the claimant did not have bicep tendonitis. The ALJ found the opinions of Dr. Geppert and Dr. Nystrom,
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that the claimant’s condition was the result of her employment, were not credible. The ALJ found the claimant had failed to establish by a preponderance of the conflicting evidence that she sustained an injury in the course and scope of her employment. The ALJ concluded that the claim was not compensable and denied and dismissed the claim.
On appeal the claimant contends that the ALJ erred as a matter of law and abused his discretion as there was not substantial evidence in the record to support the order. We disagree.
A claimant must establish entitlement to benefits by a preponderance of the evidence. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d. 590, 592 (Colo.App. 1998). This standard is met when a contested fact is “more probable than its nonexistence.” Industrial Comm’n v. Jones, 688 P. 1116, 1119 (Colo. 1984) (quoting People v. Taylor, 618 P.2d 1127, 1135
(Colo. 1980)). Proof of causation of a claimant’s alleged work-related injury is a threshold question to be determined by the ALJ before any benefits may be awarded. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000).
We must uphold the factual determinations of the ALJ if the decision is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006; Christie v. Coors Transp. Co., 919 P.2d 857, 860
(Colo.App. 1995), aff’d, 933 P.2d 1330 (Colo. 1997). See also, City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995)(ALJ’s decision may be set aside only if the ALJ’s finding are not supported by the evidence), aff’d sub nom., Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). Whether there is substantial evidence to support the ALJ’s decision is a question of law, but the evidence must be viewed as a whole in the light most favorable to the prevailing party. City of Loveland Police Dep’t v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006).
Here the ALJ was persuaded, at least in part, by the opinions of Dr. Scott. Dr. Scott testified regarding inconsistencies in the claimant’s medical history. Tr. 86-88. Dr. Scott expressed the opinion that the claimant did not have biceps tendonitis. Tr. 94. Dr. Scott also testified that the claimant did not have chronic regional pain syndrome. Tr. 105. In addition Dr. McFerran noted that, while the claimant had quite a bit of right shoulder discomfort, some of it appeared to be nonorganic in nature. Exhibit G at 29. Dr. Reichhardt agreed with Dr. Nystrom that the claimant’s subjective symptoms were out of proportion to the objective medical findings. Exhibit I at 42.
The claimant argues that the ALJ erred in crediting Dr. Scott’s opinion that, without an accurate diagnosis of the claimant’s condition, it is not possible to say if the claimant’s condition was a result of scrubbing a counter in the course of her employment. As we read the order the ALJ properly placed the burden of proving entitlement to
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benefits by a preponderance of the evidence on the claimant and the issue of whether there was an accurate diagnosis of the claimed condition was a part of that analysis. The ALJ also noted in his order the testimony of both the supervisor and the assistant manager from which adverse inferences regarding the validity of the claimant’s case could be drawn.
The claimant also argues that Dr. Scott was biased and lost all objectivity in the case because he was retained by the respondents. It is true that the opinions of Dr. Scott were at variance with other medical opinions of record, specifically Dr. Geppert and Dr. Nystrom. However, it was the ALJ’s sole prerogative as the fact finder to resolve the conflicts based upon his credibility determinations. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The claimant’s arguments regarding the fee received by Dr. Scott only go to the weight of the testimony. It is for the ALJ to determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192
(Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Applying these principles here, were perceive no reversible error in the ALJ’s crediting the opinions of Dr. Scott.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 12, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
Ginna Flores, 125 Columbia Rd., Ft. Collins, CO.
Bob L. Ring, Esq., Ring Associates, P.C., CO, (For Claimant).
Pinnacol Insurance, Harvey D. Flewelling,, CO, (For Respondents).
Ruegsegger Simon Smith Stern, LLC., Robert Babcock, Jr., Esq., CO, (For Respondents).
JEJK, INC. dba Merry Maids of Boulder and Larimer County, Jason Skillingberg, CO.