W.C. No. 4-672-398.Industrial Claim Appeals Office.
April 2, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 19, 2006, that denied and dismissed the claimant’s claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant began work as a correctional officer in March 2005. The claimant had suffered a low back injury in 1989 and underwent surgery and had occasional low back pain thereafter. On November 3 or 4, 2005, the claimant was performing “shakedowns” of inmate cells. The claimant alleges that, as she was descending the stairs after completing the shakedowns, she had a misstep on the stairs and jarred or twisted her back and neck. The claimant failed to report the injury to her employer until November 17, 2005. She alleged that she made an oral report to Captain Abdulla, among others, but that testimony was not credible and conflicts with the testimony of Captain Abdulla. The claimant failed to make any report of the alleged work injury before November 17, even when being warned about her attendance problems. She saw a physician’s assistant on November 9, 2005, but failed to report any trauma. The only diagnosis was chronic back and neck pain. The claimant’s testimony about the alleged work injury was not credible. The ALJ concluded that the preponderance of the evidence failed to prove that the claimant suffered any injury on November 3 or 4, 2005, arising out of and in the course of her employment. Therefore, the ALJ denied and dismissed the claimant’s claim for compensation.
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The petition to review contends that the denial of compensability is not supported by applicable law in that the claimant did show by a preponderance of the evidence she was injured on the job. Otherwise the petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2006. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record.
The ALJ’s order is based in large part on credibility determinations and the ALJ found that the claimant’s testimony about the alleged work injury was not credible. Under the substantial evidence standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). 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). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Moreover, we may not reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Consequently, the existence of conflicting testimony or evidence that would support a contrary result does not provide a basis for setting aside the order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999). See also, Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion).
The record here contains ample evidence supporting the ALJ’s findings. The testimony of Captain Abdulla supports the ALJ’s determination that the claimant did not, as alleged, make an oral report to Captain Abdulla and that her testimony was not credible. Tr. at 80-81. The report of the physician assistant dated November 9, 2005, just
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a few days after the alleged accident, contains no history of the accident. The physician assistant’s report also constitutes substantial evidence upon which a denial of the claim could be based. Exhibit 9 at 36. We perceive no basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 19, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________ John D. Baird
_________________________ Thomas Schrant
Robin Graham, McClave, CO, Corrections Corp of America Jay Brown, Nashville, TN, AIG Claim Services Rusty Pinckney, Shawnee Mission, KS, Heuser Heuser, LLP Barkley D. Heuser, Esq., Colorado Springs, CO, (For Claimant).
Senter, Goldfarb Rice, LLC Eric W. Truhe, Esq., Denver, CO, (For Respondents).
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