W.C. No. 4-591-626.Industrial Claim Appeals Office.
December 6, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which determined the claimant suffered a compensable injury and awarded workers’ compensation benefits. The respondents argue the ALJ failed to resolve conflicting evidence, and that the evidence is insufficient to support the ALJ’s finding of a compensable injury. We disagree and, therefore, affirm.
The claimant worked for the respondent-employer as a purchasing clerk, with duties that included receiving and stocking pharmacy shipments. On August 27, 2003, the claimant was shelving boxes of pharmacy supplies in a storeroom with the assistance of a co-worker, Jamie Wells.
The claimant testified that while pushing a box onto a shelf in a storeroom he felt severe pain in his left shoulder. The claimant testified that he exclaimed “Ow,” which caused Wells to look at him, at which time he told Wells he hurt his shoulder. After the incident, claimant and Wells finished unloading the cart, but claimant testified that the pain worsened throughout the day. The claimant reported the injury later that day to Belinda Hawkey (Hawkey), his previous supervisor, and filled out an injury report, which he submitted the following morning to his actual supervisor, Wanda Farmer (Farmer). The employer then filled out an investigation form and referred the claimant to Dr. Hansen, who diagnosed the claimant with a shoulder strain. The claimant later went to see Dr. Winkler, who also opined the claimant’s problems began with a shoulder strain.
In determining that the claimant had suffered a compensable injury, the ALJ found the claimant sustained several earlier injuries, including a left clavicle fracture in 1992, a lower back injury in 1996, a neck fracture in 1998 that resulted in a cervical fusion in 1999, and a left wrist injury in March 2003. However, the claimant testified he had no residual effects from any of those injuries, and the physician who examined claimant at the respondent’s request opined that he could not find any information in the medical records that would lead him to conclude the claimant’s current symptoms were due to the prior injuries. Under these circumstances, the ALJ found the claimant proved he sustained injuries arising out of and in the course of his employment and awarded medical and temporary disability benefits.
On review, the respondents argue the evidence establishes the claimant “fabricated this claim.” Included in the respondents’ arguments is the contention that the ALJ erred as a matter of law in crediting the testimony of both the claimant and Wells concerning the August 27 incident and the ensuing symptoms. We perceive no error.
The claimant had the burden of proof to demonstrate that the alleged disability was proximately caused by an injury arising out of and in the course of the employment. Section 8-41-301(1)(c), C.R.S. 2004. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ and the ALJ’s 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Under this standard it is the ALJ’s sole prerogative to assess the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). In this regard, we note that testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). Consequently, the existence of some evidence which, if credited, might permit a contrary result affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, supra.
The respondents assert the claimant’s testimony was incredible because he testified that he had fully recovered from serious injuries in the past, but testified that he was disabled as the result of the August 27 injury. However, as the ALJ found, the claimant’s testimony is supported by the medical reports of Dr. Hansen and Dr. Winkler, who both opined that the claimant sustained a shoulder strain injury, and that the claimant’s medical records did not show that the shoulder injury was related to any previous injury. (Claimant’s Hearing Exhibits 12, 16). Further, supervisor Farmer testified that she did not question that the claimant’s injury was work-related. (Tr. March 15, 2004, p. 84). Under these circumstances, we cannot say the ALJ erred as a matter of law in determining that the claimant’s testimony regarding a work-related shoulder injury was credible. See Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Further, the ALJ expressly recognized discrepancies in the testimony of the claimant and Wells concerning the detail of the claimant’s injury. However, their descriptions of the incident were not inconsistent. Wells admitted she had her back turned to the claimant when he indicated he had hurt himself, and so did not see the actual incident. (Tr. March 15, 2004, p. 65). Further, Wells stated that it was “a few seconds” later that she turned to look at claimant and saw him carrying a box. (Tr. March 15, 2004, pp. 71-72). Therefore, taking the testimony of both Wells and the claimant as true, the ALJ could reasonably infer that the claimant injured himself while putting a box on the shelf, exclaimed “ow,” and by the time Wells looked at the claimant, he had picked up another box. Further, it is undisputed the claimant and Wells finished putting the boxes away that morning.
The ALJ resolved the conflicts by ALJ’s finding that the testimony of both witnesses supports a finding the claimant injured his shoulder while moving boxes in the store room. Consequently, we reject the respondents’ contention the ALJ failed to resolve pertinent conflicts in the record Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Ralston v. Purina-Keystone v. Lowry, 821 P.2d 910 (Colo.App. 1991).
The failure of the claimant to report the injury or seek medical treatment immediately does not require a different result. The claimant did not talk to anyone until after the pain had become worse, at which time the claimant reported the injury to his former supervisor Hawkey and completed an injury report, which he submitted to Farmer, his new supervisor, the following morning. Further, Hawkey testified that Farmer was not available the day of the injury, and she advised claimant to talk to Farmer the following morning. (Tr. March 15, 2004, p. 90). The claimant testified he was not advised to seek medical treatment when he reported the incident to Hawkey, but went to see Dr. Hansen the following day after receiving a referral from Farmer. (Tr. March 15, 2004, pp. 21, 41; Claimant’s Hearing Exhibits 12).
It follows from this discussion that we disagree with the respondents’ assertion that the claimant’s testimony was incredible as a matter of law or that the evidence compels a finding the claimant did not sustain a compensable injury. Insofar as the respondents make other arguments, they are factual in nature and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Jeffrey A. Gardner, Cortez, CO, Southwest Health Systems, Inc., Cortez, CO, Colorado Hospital Assn. Trust, c/o Mary Ann Donelson, Support Services, Inc., Englewood, CO, Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).
Clyde E. Hook, Esq., Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).