W.C. No. 4-349-211Industrial Claim Appeals Office.
April 16, 2001
FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Friend (ALJ) and Administrative Law Judge Coughlin (ALJ Coughlin) which required them to pay temporary total disability benefits. The respondents contend the ALJ erroneously found the claimant sustained a compensable injury. We disagree and therefore, affirm.
In April 1997, the claimant began working at Wal-Mart. The claimant subsequently filed a workers’ compensation claim which alleged a back injury on June 26, 1997. The claimant testified the injury occurred while working as a cashier in the express lane. She stated that when she lifted a tree from a shopping cart to be scanned, she felt a strain in her back. Shortly thereafter, the claimant took her noon work break and sat down. She stated that while she was sitting, her condition worsened and it “hurt to stand up completely straight.” (Tr. pp. 11-12).
In an order dated December 7, 1998, the ALJ found the claimant suffered a compensable back injury from the aggravation of her pre-existing condition caused from a 1993 back injury, and awarded temporary total disability benefits. However, the ALJ did not determine the claimant’s temporary disability rate. On June 27, 2000, ALJ Coughlin ordered the respondents to pay temporary disability benefits based upon a stipulated average weekly wage. The respondents timely appealed ALJ Coughlin’s order.
I.
On appeal, the respondents contend the ALJ’s findings of fact are insufficient to permit appellate review because the ALJ failed to determine what activity the claimant was performing at the time of the injury. We disagree.
The ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624
(Colo.App. 1986). Rather, the ALJ’s order is sufficient to support appellate review if the basis for his determination is apparent from the findings. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant’s arguments notwithstanding, we have no difficulty ascertaining the basis for the ALJ’s order, and therefore, we need not remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2000; Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Contrary to the respondents’ contention, the claimant did not allege an injury while sitting or standing up. Rather, the claimant testified that the injury was the result of lifting the tree out of the shopping cart. (Tr. p. 22). The ALJ expressly found the claimant’s testimony credible. (Finding of Fact 1). It follows that the ALJ implicitly determined the claimant’s back injury occurred from lifting a tree from a shopping cart. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order). Therefore, we do not consider the respondents’ argument that an injury while rising from chair is not compensable.
II.
The respondents contend that the only evidence supporting the ALJ’s finding of a compensable injury is the claimant’s “self-serving” testimony which is overwhelmingly rebutted by the medical records, and the testimony of the employer’s witnesses, April Manzanares and Tamara Sears. Therefore, the respondents contend there is not substantial, “credible” evidence to support the award of benefits. The ALJ expressly rejected this argument and we perceive no basis to interfere with his determination.
A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury where the industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). Pain is a typical symptom from the aggravation of a pre-existing condition. A compensable injury may be established where pain from the industrial aggravation triggers a need for medical treatment. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). 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, as well as the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Medical evidence is neither required nor conclusive of the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Moreover, substantial evidence is not restricted to medical evidence. Rather, the claimant’s testimony, if credited, may alone be sufficient to support the finding of a compensable injury. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
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). In Halliburton Services v. Miller, supra, the Supreme Court acknowledged the possibility of extreme circumstances where the testimony of a particular witness may be incredible as a matter of law. The court recognized in that case that the respondents presented evidence which created a strong inference that the claimant had not notified the employer of a work-related injury. However, the court concluded that the respondents’ evidence did not directly undermine the claimant’s testimony. Therefore, in Halliburton,
the court declined to hold that the claimant’s testimony that he reported the injury within two days of the industrial accident, was incredible as a matter of law. The respondents’ arguments notwithstanding, we similarly find that the circumstances here are not so extreme as to justify disturbing the ALJ’s resolution.
The respondents contend the claimant’s allegation of a new injury is inconsistent with the medical evidence that she sought medical treatment on June 2, 1997, for complaints of back pain which had been increasing since “October 96.” Admittedly, Dr. Zuehlsdorff’s report is inconsistent with the claimant’s testimony that she was symptom free from the 1993 injury until April 1997, when she began working at WalMart. (Tr. pp. 20, 21). However, the claimant did not deny seeking treatment from Dr. Zuehlsdorff on June 2 for back pain. Further, the June 2 report does not directly undermine the claimant’s testimony that her pre- existing condition was aggravated on June 26, 1997.
April Manzanares, the employer’s Personnel Manager, testified the claimant was trained to immediately report all work-related injuries, and that the claimant did not report the injury until June 27, after she had been to the doctor. However, the claimant stated that she felt pain, but did not know she injured it. (Tr. p. 23). She also stated that it was not until the pain became severe after she had been sitting during her break, that she reported the injury. (Tr. p. 24). Under these circumstances, the ALJ could reasonably infer that the claimant’s failure to report the injury until after she was examined by a physician was not inconsistent with her testimony that the injury occurred at work on June 26.
Tamara Sears, the employer’s Customer Service Manager, testified that she did not see the claimant hurt herself and that the claimant did not report a back injury prior to taking her noon break. However, Tamara admitted that after the break, the claimant requested time off to see a doctor. (Tr. p. 43). Thus, Sears’ testimony does not directly refute the claimant’s testimony that she suffered the injury from lifting a tree, but was not prompted to seek medical treatment until after lunch when the pain became severe.
Although the June 27 physical therapy report of Ingrid Ching Kisinger describes an injury “at Walmart today,” while lifting a plan, the report also lists the “DATE OF ONSET” as June 26, 1997. Consequently, the physical therapy report is subject to conflicting inferences. Furthermore, we are not persuaded that the claimant’s version of the injury is markedly inconsistent with the physical therapist’s note that the claimant “tried to continue to work, but was unable due to the increasing pain.”
Finally, we reject the respondent’s contention the ALJ unreasonably inferred that the claimant’s testimony was supported by evidence in the medical reports of Dr. Coryell, Dr. Swafford, and Dr. Vongortler. On June 26, 1997, Dr. Coryell stated the claimant reported an injury while lifting a tree out of a cart at WalMart which “progressively got worse until she felt as if she could not stand up.” Neither Dr. Vongortler nor Dr. Swafford’s follow-up examinations suggest any other etiology. Furthermore, Dr. Coryell’s report reflects that the claimant disclosed the prior injury. Therefore, the record did not compel the ALJ to find the medical evidence was based upon an incorrect medical history.
The respondents further arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the orders of ALJ Friend dated December 7, 1998 and ALJ Coughlin’s order dated June 27, 2000 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 16, 2001 to the following parties:
Stephanie Hickey, 1230 W. 6th Ave., Broomfield, CO 80020
Wal Mart Stores, Inc., 300 Waneka Pkwy., Lafayette, CO 80026-8823
Jennifer Van Oster, Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Jack Taussig, Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: L. Epperson