W.C. No. 4-738-073.Industrial Claim Appeals Office.
November 17, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated June 12, 2008 that denied the claimant’s claim for workers’ compensation benefits. We affirm.
The claimant testified that sometime in September 2007 he was walking along an irrigation ditch, fell backward, and injured his low back. The claimant also testified he felt pain in his back on September 12, 2007 while lifting bales of hay. The ALJ concluded that the persuasive evidence did not show that the claimant had suffered an injury in September 2007, which caused disability or the need for medical treatment.
On appeal, the claimant generally contends that the ALJ failed to resolve the conflicts in the evidence and failed to apply the correct legal standard in denying the claim for compensation benefits. The claimant requests that the matter be remanded. We are not persuaded that a remand is necessary.
We first note that the question of whether the claimant met his burden to prove a compensable injury 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 of the record. Section 8 43 301(8), C.R.S. 2008. Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim
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Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant first argues, citing Industrial Commission v. Riley, 165 Colo. 586, 591, 441 P.2d 3, 5 (1968), that the ALJ failed to recognize that a claimant does not need to establish the precise medical cause of a condition, so long as he presented evidence from which the ALJ may infer a causal relationship between the injury and the need for treatment. We acknowledge the court in Industrial Commission v. Riley pointed out that in determining the compensability of a claim, an ALJ is not bound by medical opinion. However, the court also noted that it is necessary to sustain a finding of causation that the claimant show circumstances indicating with reasonable probability that the injury resulted from or was precipitated by his work activities.
The ALJ correctly noted that the claimant shoulders the burden of proving by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment. The ALJ further noted in his conclusions of law that the existence of a preexisting medical condition does not preclude the employee from suffering a compensable injury where the industrial aggravation is the proximate cause of the disability or need for treatment. In our opinion, the ALJ considered and applied the relevant legal principles.
Here the ALJ found that the claimant did not show it more probably true than not that he sustained an injury arising out of and in the course of his employment in September 2007. The ALJ also found that the claimant did not show it more probably true than not that a September 2007 work incident aggravated, accelerated or combined with a preexisting disease or infirmity to produce disability of need for medical treatment. It is further our opinion that ALJ’s findings are supported by substantial evidence in the record.
Specifically the ALJ found that the claimant’s testimony was inconsistent, unreliable and incredible. The claimant does not deny that his testimony was inconsistent. Instead, the claimant notes that he is Spanish speaking and infers that the inconsistent details regarding the alleged work injury resulted from use of a translator at the doctor’s office. The claimant also argues that the inconsistencies resulted from his confusion and difficulty with “mentation” when he presented at the hospital and that the claimant was simply a poor historian. While these factors may be worthy of consideration we do not believe that they compel a finding that the claimant was in fact credible.
Further, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by
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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). Here we are not persuaded that we should set aside the ALJ’s credibility finding on the ground that he did not give sufficient weight to the claimant’s explanation of inconsistencies in his testimony.
The claimant next argues that the ALJ erred in his finding that the claimant was able to provide details with respect to his four prior injures. The claimant contends this finding is not based on substantial evidence in the record. We disagree.
The ALJ in determining that the claimant’s testimony was unreliable found as follows:
Claimant’s testimony concerning the circumstances of this alleged work injury is unreliable. Over the course of claimant’s treatment for this alleged work injury and during the hearing, claimant has been unable to provide specific, consistent details about how, when and where his alleged accident occurred. On the other hand, claimant was able to provide such details in the past when he reported four prior work injuries to employer. For the four prior work injuries, employer processed the claims and did not question them.
Finding of Fact at 5, ¶ 8.
The claimant argues this finding is not based on substantial evidence in the record because the claimant’s description of one of his injuries was significantly different from the description of his employer. We acknowledge that the employer testified that the claimant’s description of injuries that happened in July of 2005 was significantly different from the employer’s testimony. Tr. at 76. However, the essential part of the ALJ’s analysis was not differences between the claimant’s testimony and the employer’s testimony regarding one of the injuries. Instead, the ALJ was referencing the difference in the claimant’s inconsistent testimony concerning his alleged accident here and his ability to report and provide specific information when he reported four prior work injuries to employer. In those cases, the claimant reported that he got hurt on the job and the employer sent him to a doctor. The finding that the claimant was able to provide details with respect to his prior injures is supported by the manager’s testimony. Tr. at 58.
The claimant next argues that the ALJ erred because while the ALJ found the employer manager’s testimony was credible the ALJ did not resolve the conflict in the testimony from the claimant and the manager except to say that the manager was credible. We are not persuaded that the ALJ erred.
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We first note that the ALJ was not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility See Wells v. Del Norte School District C-7, 753 P.2d 770(Colo.App. 1987). Nevertheless, here the ALJ explicitly and in detail discussed inconsistencies between the claimant’s testimony and his responses to written discovery and inconsistencies between the claimant’s testimony and the medical record. The testimony of the employer’s manager contradicted the claimant’s evidence and the ALJ made extensive findings outlining the differences. Findings of Fact at 6, ¶ 30. Moreover, the claimant again does not appear to deny inconsistencies in his evidence nor does he in his brief appear to advance any specific reason to question the credibility of the manager’s testimony.
Further, the ALJ made other findings supported by the record, from which reasonable inferences could be drawn regarding the claimant’s reliability. The claimant at the time of the alleged accident was in his sixties and on the last day of employment on September 12, 2007 had decided to retire. At that time, the claimant filled out his request for social security retirement benefits. Tr. at 51. The ALJ found that the employer testified that the claimant did not report his injury in September 2007. Tr. at 58-59. In contrast to his testimony at hearing at which he testified he felt pain in his back on September 12, 2007 while lifting bales of hay, the written claim for compensation dated December 20, 2007, provided a date of injury of September 8, 2007 (approximately). Exhibit 2 at 2. The ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). We do not find those extreme circumstances here.
The claimant’s arguments notwithstanding, there is substantial evidence in the testimony of the respondents’ witnesses to support the ALJ’s finding that the claimant failed to sustain his burden to prove a causal connection between his back condition and the employment. Consequently, the existence of other evidence which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (expert medical evidence not dispositive of causation).
The claimant next argues that the ALJ erred in denying the claim on the ground that the claimant’s testimony was inconsistent because the ALJ failed to address the fact that the claimant is a poor historian and suffered from confusion following his alleged work injury. The claimant’s arguments notwithstanding it is clear to us that the ALJ was aware that the claimant provided a poor history; the ALJ simply drew different inferences from the facts than the claimant would have him draw.
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The claimant finally argues that the ALJ erred by failing to address the medical records at the time of the injury or other medical evidence that support the claimant’s claim that he suffered a work related injury. We disagree.
The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Notwithstanding the claimant’s assertion, the ALJ made a detailed analysis of the medical record. Findings of Fact at 4-5, ¶¶ 21-27. The ALJ noted the opinion of Dr. Lambden that the claimant suffered a temporary exacerbation by the alleged activity in September 2007. However, the ALJ further noted that Dr. Lambden had opined that the etiology of the claimant’s back problems could not reliably be determined if the physician is provided with inaccurate or inconsistent histories of the alleged work injury. Tr. at 96. As noted above it is essentially conceded by the claimant that his evidence regarding his work injury was inconsistent.
We have reviewed the record and the ALJ’s findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued June 12, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________ John D. Baird
_____________________ Thomas Schrant
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MAXIMIANO VEGA-CRUZ, IGNACIO, CO, (Claimant).
LAURA, ALBERTA, STEVE PARGIN DBA PARGIN RANCH, IGNACIO, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
DAWES, HARRISS BLOODSWORTH, PC, Attn: GAIL C HARRISS, ESQ., DURANGO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: TAMERIA STUKES, DENVER, CO, (Other Party).