W.C. No. 4-587-542.Industrial Claim Appeals Office.
August 2, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which found the claimant sustained a compensable injury on December 29, 2002, and awarded temporary total disability (TTD) benefits commencing April 22, 2003. The respondents contend that the evidence does not support the ALJ’s pertinent findings of fact. We affirm.
The claimant was a greeter in the respondent-employer’s retail store. She alleged that she sustained an injury to her low back on December 29, 2002, when she was knocked down by a worker pushing a train of shopping carts.
The claimant testified that she reported the “incident” to an assistant manager (Schugar) and a customer service manager (Pattie), and Schugar permitted her to leave work early. Thereafter, the claimant continued performing her regular duties, which included standing for up to two hours at a time, although she experienced ongoing pain in the low back and both hips. The claimant testified that she managed her pain by increasing her consumption of Celebrex, which she had been prescribed for preexisting arthritis, and by consuming large doses of ibuprofen.
On April 18, 2003, the claimant was examined for back pain and left hip pain by Dr. Sunthankar, her personal physician. Dr. Sunthankar referred the claimant to Dr. Coester, a neurosurgeon. On April 22, 2003, the claimant reported to Dr. Coester that she had been knocked down by the carts and “since that time she has had back pain, and left hip pain and thigh pain with numbness and tingling in the left leg.” Dr. Coester reported that these symptoms have “been going on for well over a month now” and the claimant stated that they were “slowly worsening.” Dr. Coester referred the claimant for an MRI, which revealed multi-level degenerative disc disease of the back and an L5-S1 disc herniation compressing the L5 nerve root.
The ALJ, substantially crediting the claimant’s testimony, found the claimant sustained an injury on December 29, which aggravated the preexisting degenerative back condition. The ALJ further found that the aggravation became disabling when Dr. Coester released the claimant from work on April 22, 2003, and the claimant has not since been released to regular employment. Consequently, the ALJ awarded TTD benefits commencing April 22.
I.
On review, the respondents contend the record lacks substantial evidence to support the ALJ’s finding that the claimant sustained a compensable injury on December 29. Instead, the respondents argue the “overwhelming” evidence establishes the claimant’s symptoms were caused by the preexisting degenerative back condition or an alleged “intervening injury” on April 8, 2003, when the claimant reported to the emergency room after lifting some furniture. Inherent in the respondents’ arguments is the contention that the ALJ erred as a matter of law in crediting the claimant’s testimony concerning the December 29 incident and the ensuing symptoms. We find no error.
The claimant had the burden of proof to demonstrate that the alleged disability was proximately caused by an injury arising out of and in the course of the employment. Section 8-41-301 (1) (c), C.R.S. 2003. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because proof of a compensable injury is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003. This standard of review requires us to consider 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); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). In this regard, we note that causation need not be proven by expert medical evidence. However, where expert opinion is presented, it is for the ALJ to assess its weight and credibility Rockwell International v. Industrial Claim Appeals Office, 802 P.2d 1182
(Colo.App. 1990). Further, it is only in rare cases that testimony is contradicted by such hard, certain evidence that we may hold the testimony is incredible as a matter of law and conclude the ALJ erred in relying on it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558
(Colo.App. 2000). Testimony which is merely biased, inconsistent, or conflicting is not incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001).
The respondents assert the claimant’s testimony was incredible because she did not contradict or refute the testimony of two managers who testified the claimant failed to report the alleged injury in accordance with company policy, and the managers did not observe the claimant to be injured before April 11, 2003. However, the ALJ found the claimant credibly testified that she reported the December 29 incident to Schugar and Pattie, and the respondents failed to refute that testimony. Thus, the record merely reflects conflicting evidence, and the ALJ was not persuaded that the claimant’s failure to report the injury to the two managers called by the respondents casts substantial doubt on the claimant’s credibility.
Neither was the ALJ required to disbelieve the claimant concerning the progression of her symptoms after December 29. The medical records support the claimant’s testimony that she had been prescribed Celebrex to treat preexisting arthritis. Moreover, the April 8 emergency room report states the claimant reported taking large doses of ibuprofen to treat “chronic sciatica type of pain in her left hip.” Indeed, the emergency room physician instructed the claimant to “lay off the anti-inflammatory.” Thus, there is support in the claimant’s medical records for the claimant’s testimony that she increased the consumption of Celebrex and ibuprofen to treat her symptoms after December 29. (See also, report of Dr. Sunthankar, April 18, 2003, stating claimant “sometimes takes 12 to 15 ibuprofens a day along with Celebrex because Celebrex is not working”).
The failure of the claimant to report any back symptoms to nurse practitioner Morris on February 17, 2003, does not require a different result. Indeed, as Morris testified, the claimant was being seen for a sore throat and the examination and treatment were essentially limited to that complaint.
Neither was the ALJ required to infer that the furniture-moving incident which prompted the April 8 emergency room visit constituted an intervening cause of the claimant’s back condition. The emergency room records indicate the claimant’s primary complaints on April 8 were chest pain and abdominal pain, and that the claimant’s back pain was of chronic nature which pre-dated April 8. Indeed, the report states that by the end of the emergency room visit, the claimant’s symptoms “resolved” and were “more likely GI-related.”
Further, the claimant advised Dr. Coester on April 22 that her symptoms significantly worsened approximately one month ago. This reported increase in symptoms roughly corresponds to the time the claimant testified that she stopped taking a “double dose of Celebrex” and experienced increasing back pain. (Tr. Pp. 19-20). Admittedly, the medical records are subject to conflicting inferences, but we cannot say the ALJ erred as a matter of law in finding that they tend to corroborate the claimant’s testimony. (Finding of Fact 16).
Finally, the ALJ was not persuaded by the report of Dr. Hutson insofar as it states he could not “definitely link her present condition” to the fall of December 2002. The weight to be accorded this opinion was for the ALJ.
It follows from this discussion that we disagree with the respondents’ assertion that the claimant’s testimony was incredible as a matter of law and the evidence compels a finding that the claimant did not sustain a compensable injury. Insofar as the respondents make other arguments, they are factual in nature and we find them to be without merit.
II.
The respondents next contend the ALJ erred in finding the claimant is entitled to TTD benefits. The respondents assert the wage loss commencing April 22 was the result of the “intervening event” which occurred on April 8. However, for the reasons stated above, we reject this argument. The ALJ found on substantial evidence that the wage loss was caused by the back condition which worsened after the injury of December 29. (Conclusions of Law A B). Because substantial evidence supports this determination, there is no basis for us to interfere with the ALJ’s award of TTD benefits. See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187
(Colo.App. 2002) (question of whether a condition is the result the industrial injury or an efficient intervening cause is one of fact for determination by the ALJ).
We note that after the matter was transmitted for review, the parties stipulated to the claimant’s average weekly wage. The stipulation has the effect of establishing the amount of TTD benefits to be paid pursuant to the ALJ’s order, and the order is therefore final for purposes of review. See § 8-43-301 (2), C.R.S. 2003.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 17, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
MaryAnne Rawls-Stewart, Fort Collins, CO, Wal-Mart Stores, Inc., Fort Collins, CO, American Home Assurance, c/o Claims Management, Inc., Bentonville, AR, Shawn P. Langley, Esq., Greeley, CO, (For Claimant).
Richard A. Bovarnick, Esq. and Chad A. Atkins, Esq., Denver, CO, (For Respondents).