W.C. No. 4-588-731.Industrial Claim Appeals Office.
September 13, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her claim for benefits. The claimant contends that two of the ALJ’s findings of fact are not supported by the evidence and that the ALJ ignored pertinent medical evidence. We affirm the ALJ’s order.
The ALJ found the claimant failed to prove that she injured her right shoulder on May 5, 2003, when lifting a light fixture at work. In so doing, the ALJ discredited the claimant’s testimony concerning the alleged incident of May 5, and the claimant’s testimony that she reported the injury on May 5 and again on May 7. Instead the ALJ credited the testimony of the claimant’s supervisor that the claimant did not mention any “popping” sensation when she lifted the light fixture on May 5. Further, the ALJ found the claimant did not formally report the injury on May 7, as she initially testified, but instead reported the injury on May 12. The ALJ concluded the claimant “changed her story” when she was confronted with documentation reflecting that she reported the injury to her supervisor on May 12. (Finding of Fact 11).
The ALJ also found the claimant contradicted herself concerning whether or not a witness named “Josh” was present at the time of the alleged injury. (Finding of Fact 12). The report of injury reflects no witnesses were present. At the hearing the claimant initially stated Josh was a witness, then modified the testimony to state Josh did not witness the injury; he only witnessed the claimant’s report of injury to the supervisor. (Tr. Pp. 15-16).
Finally, the ALJ found “no persuasive medical evidence” tending to prove the existence of an acute injury on May 5. Instead, the ALJ was persuaded by an MRI report stating that the claimant has a “downward slanting acromion” which predisposes her to impingement symptoms.
On review, the claimant contends the evidence does not support two of the ALJ’s findings. The claimant argues that she did not “change her story,” as the ALJ found, but simply had no recollection of when she made the first formal report of the injury. The claimant also argues that her testimony concerning “Josh” was not “contradictory.” Finally, the claimant contends the ALJ erroneously failed to consider the report of Dr. Failinger dated January 19, 2004. We perceive no error.
The claimant had the burden to prove that she sustained an injury caused by her employment. The question of whether the claimant met the burden of proof was one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because the issue is factual in nature, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). To the extent the testimony of a witness contains internal inconsistencies, the ALJ may resolve the problem by crediting part or none of the testimony. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997) (ALJ’s fact-finding authority extends to resolution of inconsistencies in testimony of a witness). Finally, we note the ALJ need not make findings of fact concerning evidence which is not found to be dispositive of the issues in the case. Evidence not specifically addressed is presumed to have been rejected Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The ALJ plausibly found the claimant “changed her story” concerning the alleged reporting of the incident. As the ALJ found, the claimant initially stated that she immediately mentioned the May 5 incident to her supervisor, and then testified that she “more fully” reported the injury two days later when her pain increased. The claimant then qualified the statement, both on direct and cross-examination, by stating that she did not recall the exact date that she made the second report to her supervisor. Finally, on cross-examination the claimant conceded that it was probably true that she failed to report the injury fully until May 12. (Tr. Pp. 9, 13-12). Under these circumstances, it was the province of the ALJ to assess the claimant’s credibility, and he was not required to find that the inconsistencies in the claimant’s testimony were the result of mere lack of recall.
Neither do we find any error in the ALJ’s finding that the claimant “appeared to contradict herself” as to whether “Josh” was a witness to the injury. The claimant initially replied “yes” when asked whether “Josh” “witnessed this incident.” The claimant then qualified this testimony by stating, “He — He — he didn’t witness when my shoulder popped. He witnessed when I told Kevin that my shoulder popped.” (Tr. P. 16). This issue was of significance because the report of injury did not show any witnesses were present. While the claimant’s testimony is subject to varying interpretations and inferences, the ALJ could plausibly find that the claimant was “contradicting herself” concerning whether or not Josh was a witness to the injury, or merely to the reporting of the injury. The weight to be assigned this contradiction was a credibility issue for the ALJ.
Finally, we reject the claimant’s argument that the ALJ ignored the January 19 report of Dr. Failinger. The ALJ was persuaded by the MRI report insofar as it showed no objective injury to the shoulder and revealed the “downward sloping acromion” which predisposed the claimant to symptoms of impingement. The ALJ found the other medical evidence was “not persuasive.” Thus, the ALJ considered the January 19 report, but did not find it to be persuasive on the issue of causation. The ALJ was not required to make explicit mention of the report in order to reject it Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Insofar as the claimant makes other arguments, they are purely factual and do not provide a basis for disturbing the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 30, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain
_______________________________ Bill Whitacre
Jessica Porras, Aurora, CO, Katrina Moore, Cooper Industries, Ltd., Denver, CO, Pacific Employers Insurance Co., c/o Wes Johnson, ACE USA, Portland, OR, James A. May, Esq., Denver, CO, (For Claimant).
Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).