W.C. No. 4-328-144Industrial Claim Appeals Office.
February 1, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Atencio (ALJ) which determined the claimant failed to prove a compensable injury, and therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
On February 28, 1995, the claimant was employed as a serviceman for the respondent- employer. The claimant alleged that on February 28 between 10 a.m. and noon he injured his left shoulder and leg when he slipped on an icy driveway during a service call.
The claimant testified that following the injury he finished the service call and at least one other minor service call. He stated that the injuries gradually became more painful so he returned to the employer’s office the afternoon of February 28 and reported the injury to his supervisor, Michael Montgomery (Montgomery). The claimant stated that when he reported the injury, Montgomery instructed him to fill out an injury report and gave him a notice terminating his employment. Montgomery corroborated the claimant’s testimony concerning the report of injury.
The claimant testified that his condition continued to worsen and on March 1 he sought emergency room treatment, complaining of numbness in his left groin radiating down his leg and pain the left shoulder. He was diagnosed with a rotator cuff tear and paresthesia of the left thigh.
The ALJ determined that the testimony of the claimant and Montgomery regarding the alleged injury, and the claimant’s report of the injury, was not credible. The ALJ also found that the claimant’s denial of prior left shoulder and left groin problems is inconsistent with medical reports dated April 8, 1994, and May 7, 1994. Moreover, the ALJ cited evidence that the claimant was able to finish one or two more service calls after the alleged injury, the claimant did not fill out an accident report until March 2, the claimant did not seek treatment until March 1, the claimant did not seek treatment from the employer’s designated physician, the claimant did not report the injury to Lori Goto as previously instructed by the employer, and the claimant did not file a formal claim for workers’ compensation benefits until February 1997. In light of these findings, the ALJ concluded that the claimant failed to carry his burden of proof to establish a compensable injury.
On review, the claimant contends the ALJ failed to make any findings of fact concerning the March 1, 1995, medical report from the University Hospital emergency room, and argues that this report compels the conclusion that the claimant’s testimony concerning the February 28 injuries is credible. The claimant also contends that the ALJ’s findings of inconsistencies in the claimant’s testimony are not supported by the record. Therefore, the claimant requests that we set aside the ALJ’s order and remand the matter for a “new trial.”
The claimant has the burden to prove that his injuries arose out of and in the course of his employment. Section 8-43-301, C.R.S. 199 ; City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). It is the ALJ’s sole prerogative to assess the credibility of the witnesses and the probative value of the evidence to determine whether the claimant has met his burden of proof. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard we are bound by plausible inferences which the ALJ drew from the record. Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997). Furthermore, we may not interfere with the ALJ’s credibility determinations unless his finding is rebutted by such hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, based upon this record we cannot say that, as a matter of law, the ALJ erroneously rejected the testimony of the claimant and Montgomery. Admittedly, the claimant and Montgomery were the only witnesses. However, the ALJ is not required to credit the claimant’s testimony, and is not bound by uncontroverted testimony. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Further, the ALJ noted that Montgomery has a pending civil suit and workers’ compensation claim against the employer.
We also reject the claimant’s assertions concerning the March 1, 1995, medical report. Contrary to the claimant’s argument, the ALJ explicitly considered that report. (Finding of Fact 5). The report indicates that the claimant gave a history of injury on February 28 when he fell on the ice. However, there were no witnesses to the injury. Consequently, that report is not hard, certain evidence establishing the veracity of the claimant’s testimony that the injuries occurred at work. Halliburton Services v. Miller, supra.
Further, the medical reports dated April 8, 1994, and May 7, 1994, are subject to conflicting inferences concerning whether the claimant experienced shoulder and groin problems prior to February 28, 1995. The ALJ resolved conflict against the claimant, and we may not interfere with his determination. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two inferences plausible, appellate court may not interfere with ALJ’s selection).
The remainder of the claimant’s arguments pertain to the ALJ’s implicit determination that the claimant’s actions were not consistent with the alleged injury. Insofar as the record is subject to conflicting inferences concerning the reasons for the claimant’s actions, the ALJ resolved the conflicts against the claimant and we may not reweigh the evidence on review. See Martinez v. Regional Transportation District, 832 P.2d 1060
(Colo.App. 1992). Consequently, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 18, 1998, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed February 1, 1999
to the following parties:
Alan Patlen, 17948 East Ohio Circle, Aurora, CO 80017
Canac Kitchens Limited, 360 John Street, Thornhill, Canada, L3T 3M9
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority (Interagency Mail)
Michael S. Krieger, Esq., Krieger Hale Frankl Mulcahy, 3333 South Bannock Street, Suite 888, Englewood, CO 80110 (For Claimant)
Raymond F. Callahan, Esq., Anderson, Campbell and Laugesen, PC, 3464 S. Willow Street, Denver, CO 80231-4566 (For Respondents)
BY: _______________