W.C. No. 4-635-427.Industrial Claim Appeals Office.
March 9, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Henk dated December 1, 2005. The ALJ determined the claimant failed to establish by a preponderance of the evidence that he suffered a work related injury. We affirm.
Three hearings were held before two different ALJs. The ALJ presiding over the last two hearings issued the Findings of Fact, Conclusions of Law, and Order from which the claimant seeks review. Transcripts of each hearing were prepared and are included in the record before us; however, ALJ Henk vacated the hearing before the prior ALJ pursuant to the request of the parties and started the hearing anew. The claimant testified about prior statements during the previous hearing. The claimant has a limited ability to converse in English and an interpreter translated the claimant’s testimony from Turkish to English.
The claimant’s job duties included loading products onto pallets. He testified that on December 8, 2004, he felt pain in his back while lifting packages and loading them onto a pallet. The parties’ testimony differed sharply on when and how the claimant advised the employer of his alleged back injury. The ALJ found the claimant’s testimony to be inconsistent and not credible. Specifically, the ALJ found that the claimant’s testimony concerning his alleged injury and the reporting of it to his supervisor was not credible. She also found several inconsistencies in the claimant’s testimony regarding when he met with his supervisor concerning the alleged injury and how his alleged back pain developed. The ALJ further found the claimant referred to his back in describing his condition to a medical provider, yet failed to refer to his back during his previous discussion with his supervisor. The ALJ found the testimony of the claimant’s supervisors, on the other hand, to be credible.
We may alter the ALJ’s order only if the findings of fact are insufficient to permit appellate review, conflicts in the evidence are not resolved in the record, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the denial of benefits is not supported by applicable law. § 8-43-301(8), C.R.S. (2005).
To prove a compensable injury the claimant is required to prove that the injuries arose out of and in the course of the employment. § 8-41-301(1)(c), C.R.S. (2005); Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant proved that his injuries arose out of and in the course of the employment is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. §8-43-301(8). University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
Under this standard, we must view the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We must also defer to the ALJ’s credibility determinations and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ’s findings are supported by substantial evidence in the record and the findings support the conclusion the claimant failed to prove he suffered an injury that arose out of and in the course of the employment relationship. See Alpine Roofing Co. v. Dalton, supra. Therefore, the ALJ did not err in denying the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
Suleyman Govercin, Aurora, CO, James Rogers, Coca-Cola Enterprises, Inc., Denver, CO.
ACE American Insurance Company, c/o Reese Gardiner, Sedgwick CMS, Dallas, TX, Lawrence D. Blackman, Esq., Denver, CO, (For Respondents).