W.C. No. 4-719-346.Industrial Claim Appeals Office.
February 15, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated October 28, 2007, that denied and dismissed the claimant’s claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. On March 30, 2007, the claimant took a break from her job duties and went outside in order to have a cigarette. The claimant went to an area that was covered from the elements and there was no snow accumulation or ice under the overhang. A co-worker testified that he observed the claimant smoking when suddenly her eyes rolled back in her head and she fell to the ground for no apparent reason. The claimant was unsure of why she fell.
The ALJ found that there was insufficient evidence to indicate that the reason for fainting or collapsing was brought about by a work injury, and there was no special hazard of employment, such as ice, that could have cause the claimant to fall. Therefore, the ALJ determined that the claimant failed to sustain her burden of proving that her injury arose out of or in the course and scope of her employment and dismissed the claim.
I.
On appeal the claimant argues that the ALJ erred by concluding that the record contained “no evidence” to indicate that the reason for fainting or collapsing was brought on by a work injury. Citing well-established case law, the claimant argues that a finding that there is “no evidence” to support a factual proposition may not be converted to a finding that there is no “credible evidence” to support it Hall v. Industrial Claim Appeals Office, 757 P.2d 1132, 1133 (Colo.App. 1988). The claimant then recites evidence
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supporting a finding that the claimant slipped on ice and argues that the ALJ ignored this evidence.
However, contrary to the claimant’s assertion, the ALJ’s order does not state that there was “no evidence.” Instead, the ALJ’s order contains the statement that there was “insufficient evidence” to indicate that the reason for fainting or collapsing was brought about by a work injury. Findings of Fact, Conclusion of Law, and Order at 3, ¶ 6. Therefore, we reject the claimant’s argument.
II.
The claimant next contends that the ALJ ignored and failed to address essential and significant evidence, which supports the claimant’s claim. The claimant admits that while there was some evidence in the record to support the ALJ’s decision the overwhelming weight of the evidence supports the conclusion that the claim is compensable. The claimant argues that the ALJ’s decision is not supported by substantial evidence.
In support of her argument, the claimant cites testimony of Janet Garcia who testified that she noticed that the snow was slushy when she drove to the drive-in after the claimant’s fall and that this testimony was not mentioned by the ALJ. The claimant also argues that the emergency room records indicate that the claimant slipped on ice and that the claimant fell onto her wrist, which the claimant contends is consistent with slipping and falling on ice. Exhibit 6 at 8, 11. The ALJ’s order made no specific note of this evidence.
However, while it is true that the ALJ did not cite or discuss every piece of evidence in his order, we note that the ALJ is not required to do so before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48
(1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
In our opinion, there was substantial evidence to support the ALJ’s determination. Janet Garcia did testify that the conditions on the ground around the drive-in were slushy and the ALJ did not make note of this testimony in his order. Tr. at 37. However, her testimony was weakened on cross-examination when she admitted that she did not know where, at the drive-in, her mother had fallen. Tr. 38. In addition, the ALJ did note the testimony of two co-employees who testified regarding what they saw following the accident. The ALJ found they testified that the ground where the claimant fell was wet, but there was no ice on it. This finding is supported in the record. Tr. 65, 72. The ALJ noted that the claimant was unsure of why she fell. This finding is also supported in the record. Tr. 26. The ALJ found that the testimony of a third co-employee was the most
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credible description of the circumstances surrounding the claimant’s fall. The ALJ found, with record support, that the claimant was in an area that was covered from the elements and there was no snow accumulation or ice under the overhang. Tr. 41, 47. The co-employee described, and the ALJ found, that as the claimant was finishing a cigarette her eyes rolled back in her head and she collapsed, falling to the ground. Tr. 50-51.
The ALJ found the testimony of the co-employee to be more credible than other evidence presented. We may not set aside a credibility finding 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). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). In our opinion those extreme circumstances do not exist here.
The claimant had the burden to prove that her alleged disability was proximately caused by an injury arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2007. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). In our view, the ALJ was not compelled to accept the claimant’s contention that she slipped on ice rather than collapsed and substantial evidence supported the ALJ’s determination.
IT IS THEREFORE ORDERED that the ALJ’s order issued October 28, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________
John D. Baird
_______________________
Thomas Schrant
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MARY G GARCIA, DURANGO, CO, (Claimant)
SONIC CORP, Attn: SCOTT BRANNAN, C/O: D/B/A SONIC RESTAURANT, FARMINGTON, NM, (Employer).
GALLAGHER BASSET SERVICES, INC., Attn: AMY FUNDERBUNK, ENGLEWOOD, CO, (Insurer).
DAWES AND HARRIS, PC, Attn: ROBERT C. DAWES, ESQ., DURANGO, CO, (For Claimant).
RITSEMA LYON, PC, Attn: CAROL A. FINLAY, ESQ., GRAND JUNCTION, CO, (For Respondents).
SONIC CORP, Attn: SCOTT BRANNAN/LANA COPELAND, DURANGO, CO, (Other Party).
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