W.C. Nos. 4-203-503, 4-152-598Industrial Claim Appeals Office.
September 28, 1995
FINAL ORDER
The claimant seeks review of a final order issued by Administrative Law Judge Friend (ALJ) on March 8, 1995. We affirm.
The claimant sustained an admitted right knee injury on October 30, 1992, during his employment with Great Western Erectors. The injury is the subject of W.C. No. 4-152-598, which was closed following the filing of an uncontested Final Admission of Liability dated May 19, 1993. The claimant subsequently petitioned to reopen the claim and alleged a worsening of condition based upon Dr. McDonough’s February 2, 1994 report which indicated that the claimant suffered a worsening of his condition following a twisting injury two months earlier.
The claimant also filed W.C. No. 4-203-503, which alleged that the worsened condition is the result of a new injury on November 23, 1993, arising out of his employment for the Bear River Steel Co. Compensability was denied.
The record contains conflicting evidence concerning the cause of the claimant’s right knee problems after May 19, 1993. The ALJ resolved the conflicts based upon his credibility determinations. The ALJ found that the claimant’s testimony that he suffered a work-related knee injury on November 23, 1993, was not credible, and found that the contrary testimony of the respondents’ witnesses Terry Burd and Bill Grauwiler was credible and persuasive. Further, the ALJ was not persuaded by Dr. McDonough’s opinion that the claimant’s condition as of February 1994, is attributable to an industrial injury on November 23, 1993. However, the ALJ credited Dr. McDonough’s opinion insofar as the doctor did not attribute the claimant’s February 1994 condition to the 1992 industrial injury.
Based upon these findings the ALJ determined that the claimant failed to sustain his burden to prove that he suffered a compensable knee injury on November 23, 1993. The ALJ also determined that the claimant failed to prove a worsening of his condition from the 1992 injury. Therefore, the ALJ dismissed W.C. No. 4-203-503 and denied the petition to reopen W.C. No. 4-152-598.
On review, the claimant contends that the ALJ’s findings of fact are not supported by substantial evidence in the record. In support, the claimant cites his testimony concerning the November 23 injury and Dr. McDonough’s references to the claimant’s report of a November 23 twisting injury. We reject this argument.
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 testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Furthermore, our application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, his assessment of the weight and sufficiency of the evidence and his resolution of conflicts in the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981).
Here, the ALJ did not find the claimant’s testimony or Dr. McDonough’s opinion concerning the alleged 1993 injury credible or persuasive. Accordingly, the claimant’s argument that this evidence, if credited, might support the result sought by the claimant does not establish grounds to set aside the ALJ’s order. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.) Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Moreover, we have reviewed the ALJ’s factual determinations and the record. The ALJ’s findings of fact are supported by the evidence he found credible. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ is free to credit all, part or none of a physician’s testimony). Furthermore, the ALJ’s findings support his denial of benefits. See Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990) (the causation issue may be resolved entirely through circumstantial evidence); Lucero v. Industrial Commission, 710 P.2d 1191 (Colo.App. 1985) (failure to prove that the worsening condition is causally related to the original industrial injury is fatal to a petition to reopen). Therefore, we must uphold the ALJ’s order. Section 8-43-301(8).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 8, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 28, 1995 to the following parties:
Daniel Olivo, P.O. Box 863, Ft. Lupton, CO 80621
Great Western Erectors, P.O. Box 2465, Commerce City, CO 80150-2465
Bear River Steel Co., 1706 Ojeman Rd., Ste. 2, Houston, TX 77055-3108
Farmington Casualty Co., P.O. Box 173712, Denver, CO 80217
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
Thomas E. J. Hazard, Esq., 1700 Broadway, Ste., 1700, Denver, CO 80290-1701, (For Bear River Steel and CCIA)
Samuel H. Collins, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Tama L. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203, (For Great Western and Farmington Casualty)
BY: _______________________