W.C. No. 4-260-154Industrial Claim Appeals Office.
May 9, 1996
FINAL ORDER
The respondent has filed a Petition to Review an order of Chief Administrative Law Judge Felter (ALJ) which determined that the claimant suffered a compensable injury, and awarded benefits. We affirm.
The respondent’s Petition to Review essentially contends that the claimant’s testimony is insufficient to sustain the claimant’s burden to prove that he suffered a low back injury arising out of and in the course of his employment. Therefore, the respondent argues that insofar as the ALJ’s order is based upon the claimant’s testimony, the ALJ’s findings are not supported by substantial evidence in the record.
However, we note that the respondent did not file a brief in support of its Petition. Consequently, the effectiveness of our review is limited.
The claimant is not required to establish the compensable nature of his injury by medical evidence. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983). Rather the claimant’s testimony, if credited, may alone constitute substantial evidence to support a finding that the claimant’s injury arose out of his employment. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony constituted substantial evidence that the claimant’s employment caused his heart attack).
Here, the ALJ credited the claimant’s testimony to find that the claimant injured his low back while attempting to lift a heavy hydraulic cylinder at work. In so doing, the ALJ expressly recognized the respondent’s personnel records which indicate that the claimant did not work on December 6, 1994, the date the claimant believed the injury occurred. However, the ALJ found the claimant to be a credible witness with “an imprecise memory” concerning the actual date he was injured.
Contrary to the respondent’s argument, the evidence which indicates that the claimant was mistaken about the date of the injury did not require the ALJ to reject the claimant’s testimony that the back injury arose out of and in the course of his employment. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit all, part or none of a witness’ testimony). Furthermore, regardless of the evidence that the claimant did not work on December 5, 6, or 7, the claimant’s testimony supports the ALJ’s inference that the claimant suffered a work-related injury in early December. (Tr. pp. 9, 10). The claimant testified that that he remembered a falling injury at work in December and thought that the injury occurred in “beginning” of December, about the same time as the Feast of St. Nicholas. (Tr. pp. 28, 29).
Moreover, the claimant was the only hearing witness. Consequently, the record does not contain hard, certain evidence to rebut the claimant’s testimony that he suffered a work-related injury in December. Therefore, we cannot say that the LJ erred as a matter of law in crediting the claimant’s testimony. See Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986).
In fact, the ALJ expressly noted that the claimant’s testimony was buttressed by the October 13, 1995 medical report of Dr. Wittenberg. Under these circumstances, there is substantial evidence in the record to support the ALJ’s findings of fact and those findings support the ALJ’s determination that the claimant suffered a compensable injury.
The respondent’s further allegations of error have been considered and are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 9, 1996 to the following parties:
Michael Frazzini, 3863 Winona Court, Denver, CO 80212
City County of Denver, 110 16th St., Denver, CO 80202-5202
Wayne E. Vaden, Esq., City County of Denver, 1445 Cleveland Place, #200, Denver, CO 80202
Richard Uhrlaub, Workers’ Compensation Unit, 1445 Cleveland Place, Annex 1, #200, Denver, CO 80202
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Dr., Ste. 280, Denver, CO 80209 (For the Claimant)
By: ________________________