W.C. No. 4-147-113Industrial Claim Appeals Office.
August 27, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed his petition to reopen the claim. We affirm.
On September 14, 1992, the claimant suffered admitted injuries to his left ankle and wrist while working for Ortega Concrete Forming Inc. (Ortega). The claim was closed pursuant to an uncontested Final Admission of Liability dated March 4, 1993.
Thereafter, the claimant petitioned to reopen the claim alleging that the September 14 accident caused a back injury which has since worsened and requires treatment. In support, the claimant offered the testimony of a former co-worker, David Silcox (Mr. Silcox).
The ALJ determined that the claimant failed to prove a causal connection between his back pain and the September 14 accident. Therefore, the ALJ concluded that the claimant failed to establish that the claim should be reopened on grounds of error, mistake or change of condition.
In reaching this result, the ALJ found that Mr. Silcox testified the “claimant complained to him of back pain after he returned to work” following the industrial accident. However, the ALJ also found that:
“Mr. Silcox left Ortega Concrete Forming prior to claimant’s return to work. Consequently, Mr. Silcox did not work with claimant after his accident and is not credible concerning claimant’s complaints of back pain after claimant returned to work.” (Finding of Fact 4).
The ALJ further found that, according to Mr. Silcox, “he saw claimant three to four months after the accident,” at which time the claimant reported “he was unemployed and unable to work due to back pain.” However, the ALJ found this testimony incredible because he determined that the claimant was still working for Ortega at the time of the alleged conversation. (Finding of Fact 5).
On review, the claimant’s sole argument is that the ALJ’s factual determinations concerning the testimony of Mr. Silcox are contrary to the record. We disagree.
We must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). 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). Insofar as the evidence is subject to conflicting inferences, we must defer to the ALJ’s resolution of the conflicts and the plausible inferences she drew from the record. Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo.App. 1994).
Mr. Silcox gave conflicting testimony concerning his contact with the claimant following the industrial accident. As argued by the claimant, Mr. Silcox stated that he worked with the claimant after the accident, and during this time the claimant complained of back pain. However, Mr. Silcox also testified that he worked for Ortega only one to two weeks after the accident. (Silcox depo. pp. 4, 9, 23). Furthermore, he stated that his employment for Ortega ended September 25, 1992. (Silcox depo. p. 19).
The ALJ found that the claimant “was off work from September 15, 1992 to October 4, 1992” as a result of the industrial accident, and the claimant does not dispute this finding. (Finding of Fact 3). Therefore, we are bound by the ALJ’s determination. Furthermore, this finding supports the ALJ’s determination that Mr. Silcox was not employed by Ortega at the time the claimant returned to work from the accident. Under these circumstances, we may not interfere with the ALJ’s refusal to credit Mr. Silcox’s testimony concerning whether the claimant complained of back pain after returning to work following the industrial injury. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ’s credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).
Similarly, the claimant does not dispute the ALJ’s finding that he continued to work for Ortega until September 8, 1993. (Finding of Fact 3). In any case, the ALJ’s finding is consistent with the claimant’s testimony, and thus, is binding. (Tr. pp. 27-28).
Mr. Silcox stated that six months to a year after the accident the claimant told him he was unemployed and unable to work due to back pain from the September 14 accident. (Silcox depo. p. 10). However, he admitted that his memory was not very good, and also stated that the conversation took place three months, or three to four months after the accident. (Silcox depo. pp. 18, 21, 23). Therefore, the record supports the ALJ’s finding concerning Mr. Silcox’s testimony on this issue. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is the ALJ’s sole prerogative to resolve inconsistencies in a witness’ testimony, and is free to credit all, part of none of the testimony).
Moreover, regardless of whether the alleged conversation took place three, four, six or twelve months after the accident, the claimant’s testimony supports the ALJ’s finding that the claimant was still working for Ortega at the time of the alleged conversation with Mr. Silcox. Under these circumstances, the ALJ could, and did, reasonably infer that flaws in Mr. Silcox’s memory rendered his testimony unreliable. Consequently, the claimant has failed to establish grounds which afford us a basis to disturb the disputed findings.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 3, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed August 27, 1997 to the following parties:
Joseph Gonzales, 320 Gayhart, Apt. 4, Colorado Springs, CO 80916
John Ortega, Ortega Concrete Forming, Inc., 2480 Waynoke Road, Colorado Springs, CO 80915
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Michael Goodman, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Cameron L. Curry, Esq., 320 S. Cascade Ave., Colorado Springs, CO 80903 (For the Claimant)
By: _______________________________