W.C. No. 4-605-702.Industrial Claim Appeals Office.
August 8, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove a work-related injury and, therefore, dismissed and denied the claim for workers’ compensation benefits. We affirm.
The claimant denied any back pain prior to the summer of 2003 when he was hired by the respondent-employer. The claimant testified that in mid December 2003 he began to experience back pain from throwing large quantities of used oil filters in a dumpster. He stated he reported the pain to the employer but no treatment was offered. The claimant also testified that he suffered an acute back strain at approximately 6 a.m. the morning of January 31, 2004, while disposing of 100 pounds of used oil filters.
The ALJ found the claimant did not clock-in until 7:57 a.m on January 31, 2004, and rejected the claimant’s testimony that he worked almost 2 hours for the employer without pay the morning of the alleged injury. The ALJ also determined the claimant’s testimony that he had no preexisting back pain was not credible. Therefore, the ALJ resolved conflicts in the evidence against the claimant and determined a preponderance of evidence did not establish the claimant suffered an accidental back injury at work.
On review the claimant contends the ALJ’s findings are too indeterminate, vague and conflicting to permit appellate review. The claimant also contends the findings are not supported by substantial evidence and do not support the order denying benefits. We disagree.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions and must occur while the claimant is “performing service” arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2004. Whether the claimant has sustained his burden of proof is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We must uphold the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2004; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
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 including the Dr. Hall’s independent medical examination (IME) 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).
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 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). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Because the testimony of the claimant and the respondents was in direct conflict concerning whether the claimant reported low back pain prior to December 2003, we cannot say the testimony of the respondents’ witnesses was overwhelmingly rebutted. To the contrary the testimony of the respondents witnesses is consistent with each other. Therefore, we may disturb the ALJs’ credibility determinations.
The claimant next contends the ALJ’s finding that the claimant “suffered preexisting low back and leg pain,” (Finding of Fact 2), is not sufficient to permit appellate review because the ALJ failed to define the time period referred to as “preexisting.” However, the ALJ credited the testimony of the claimant’s co-worker, Jennifer Smith, that the claimant complained of low back and leg pain before she went on maternity leave in October 2003. (Finding of Fact 3). Thus, it is apparent the ALJ found the claimant’s low back and leg pain existed prior to October 2003.
The claimant raises a similar argument concerning Finding 7. In Finding of Fact 6 the ALJ noted the claimant’s allegation of a back injury in late December and a back injury on January 31. In Finding of Fact 7 the ALJ acknowledged the claimant’s contention that he reported “his injury” to David Edge (Edge) and then to Alan Rodbourn (Rodbourn) in mid January 2004, but continued to perform his regular duties “during the month of January 2004.” Under these circumstances, the term “his injury” obviously refers to the alleged injury in December 2003.
Moreover, in view of the claimant’s allegation that the initial back pain began in December 2003 and was aggravated in January 2004, the ALJs’ finding that the “Claimant’s testimony is not credible,” inherently refers to the claimant’s testimony that he suffered work-related back injuries in December and January.
Further, the claimant’s interpretation of Finding of Fact 15 is incorrect. The ALJ did not find the claimant proved he suffered an industrial aggravation of his preexisting injury. To the contrary the ALJ found the claimant denied any preexisting back condition. Therefore, the ALJ’s order denying benefits is not inconsistent with his finding that:
“it would have been plausible that claimant, suffering preexisting low back and leg symptoms, could aggravate his condition lifting a barrel of used oil filers, that was not the claim.”
The claimant’s remaining arguments have been considered and do not alter our conclusions. The testimony of the respondents’ witnesses, Edge and Rodbourn contain substantial evidence the claimant reported back pain from falling off a roof. (Tr. Edge 68; Rodbourn depo. p. 6). Furthermore, the ALJ’s findings reflect that he also rejected the claimant’s allegation of a compensable back injury in December 2003. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ under no obligation to address every issue raised and we may consider findings which are necessarily implied by the ALJ’s order). Therefore, we conclude the claimant as failed to estabish any reversible error by the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 17, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
James Parmley, Colorado Springs, CO, Allied Lube LLC d/b/a Jiffy Lube, Costa Mesa, CA, Allied Lube LLC d/b/a Jiffy Lube, Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Sheila Toborg, Esq., Colorado Springs, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).