W.C. No. 4-609-531.Industrial Claim Appeals Office.
October 12, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated May 12, 2006, that determined the claimant did not suffer a compensable industrial injury. We affirm.
The ALJ’s pertinent findings of fact include the following. On August 2, 2002, a coat-rack fell and hit the claimant below and behind the right ear in the course and scope of her employment. She sustained a bruise that resolved within a few days. She missed no work and required no medical care. At the time of the hearing the claimant suffered from dizziness, vertigo, spinning nausea, vomiting, TMJ dysfunction, headaches, and ear-aches. There was no clear diagnosis explaining these symptoms and they might be related to a reaction to antibiotics, because they began many months after the industrial accident but immediately after the claimant ingested antibiotics. It was not likely that the symptoms were related to the compensable accident because the symptoms arose months after the blow to the head. The medical evidence as a whole did not support the theory that the symptoms were related to the industrial accident. The ALJ concluded that the claimant had not demonstrated by a preponderance of the evidence that her symptoms at the time of the hearing, her need for medical care and her inability to work were related to the accident.
On appeal the claimant contends that the findings of fact made by the ALJ are speculative and unreasonable and do not support the ALJ’s conclusions of law and order. The claimant alleges six specific errors contained in the ALJ’s findings of fact. However, we are unpersuaded that the ALJ erred.
The Workers’ Compensation Act creates a distinction between the terms “accident” and “injury.” The term “accident” refers to an “unexpected, unusual, or undesigned occurrence.” Section 8-40-201(1), C.R.S. 2006. In contrast, an “injury” refers to the physical trauma caused by the accident. In other words, an “accident” is the cause and an “injury” is the result. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). No benefits flow to the victim of an industrial accident unless the accident results in a compensable “injury.”
A “compensable” industrial accident is one which results in an injury requiring medical treatment or causing disability. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990) Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). The question of whether the claimant has proven a compensable injury is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-433-01(8), C.R.S. 2006; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
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 or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293
(1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The claimant first contends that the ALJ erred in finding that when seeing her regular physician Dr. Martin for various ongoing non-work related conditions, she did not mention an injury at work, nor did she mention any dizziness or pain about the ear or neck. Findings of Fact, Conclusions of Law, and Order at 2, ¶ 3. The claimant argues that she testified that in fact she had mention the coat-rack incident to Dr. Martin but “I don’t believe she thought anything of it either at the time.” The claimant after noting that the ALJ also found that the “Claimant was a credible witness and described the course of her symptoms to the best of her ability” argues that the ALJ was then prohibited from drawing any adverse inferences from the rest of the evidence present. We disagree.
When determining the credibility of a witness, the ALJ is free to credit all, part, or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Here, the ALJ was not persuaded that the claimant sustained any serious injury from the coat rack incident. She drew this plausible inference from the record, which included the report of Dr. Martin dated August 6, 2002 containing no mention of an injury at work. We perceive no conflict in the ALJ’s finding the claimant described the course of her symptoms to the best of her ability and yet still crediting the report of Dr. Martin that contained no mention of an accident. Exhibit 5 at 1. Consequently, we cannot say the ALJ erred in relying on the report of Dr. Martin. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The claimant next contends the ALJ erred in her Findings of Fact, Conclusions of Law, and Order at 4, ¶ 23. The ALJ in discussing the report of Dr. D’Angelo dated March 6, 2004 correctly notes that a history was taken of the coat-rack incident that caused minor tenderness to the side of the head, but did not require medical care. Exhibit J at 57. The ALJ further correctly noted that Dr. D’Angelo “was at a loss to explain her dizziness and other symptoms of vertigo (which by her admission developed one year after her accident) on the basis of an injury that occurred in Aug 2002. An injury which was apparently so minor that it did not require any medical attention acutely. I also told her that her symptoms were consistent with her diagnosis of Meniere’s disease . . .” The claimant contends that the she was placed on antibiotics and experienced dizziness only five months after the injury, rather than a year as suggested in the ALJ’s findings of fact. The record does contain some evidence that the claimant first had episodes of dizziness closer to the date of her accident than recorded in Dr. D’Angelo’s medical report. However, the report contains a history given by the claimant to Dr. D’Angelo that the claimant developed dizziness and other symptoms one year after her accident. The finding of fact is therefore essentially based on the report of Dr. D’Angelo. We perceive no basis upon which to interfere with the ALJ’s finding based upon a medical report received into evidence without objection, and which constitutes substantial evidence in the record. Tr. at 6. Section 8-43-301(8) C.R.S. 2006.
The claimant next contends that the ALJ erred in her Findings of Fact, Conclusions of Law, and Order at 6, ¶ 35. The ALJ found there that Dr. Esses authored a note dated June 8, 2005, stating that the claimant’s symptoms began about four months after the injury with the coat rack incident and that the passage of that length of time was not “out of the realm of possibility” for an endolymphatic hydrops, which Dr. Esses had diagnosed. Exhibit 6 at 3. The ALJ further found that Dr. Esses was mistaken regarding the amount of time that passed before the onset of symptoms in this case. Based upon her finding that Dr. Esses was mistaken concerning the length of time that had passed, the ALJ rejected her opinion as not credible.
The claimant contends that the evidence was that the claimant developed dizziness five months after the injury. Therefore she argues that the ALJ erred in finding that Dr. Esses was mistaken regarding the amount of time that had passed before the onset of symptoms. However, even conceding the claimant’s argument, Dr. Esses had still mistaken the lapse of time by one month. Under these circumstances, we cannot state that the ALJ erred in finding that the doctor was mistaken regarding the time that elapsed. Moreover, there is support in the record that the doctor’s error regarding the lapse of time was much greater than one month. The claimant reported to Dr. D’Angelo that her dizziness developed one year after the accident. Exhibit J at 57. As the fact finder the ALJ is solely responsible for determining the weight to be given expert testimony. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent the ALJ chose not to rely on the reports of Dr. Esses to establish a causal connection between the coat-rack incident and the claimed disability we perceive no basis to interfere with the ALJ’s finding.
The claimant also argues that the ALJ erred in Findings of Fact, Conclusions of Law, and Order at 7, ¶ 40. The claimant argues that the ALJ’s finding that the claimant’s condition was most likely caused by a reaction to the antibiotics is speculative and not supported by the medical reports relating to the claimant’s condition. The claimant further argues that the finding is directly contradicted by the only medical record that specifically addressed the issue, a report issued by Dr. Lipkin. We disagree. There is support in the record for the ALJ’s determination. The claimant testified that after taking antibiotics she became dizzy. Tr. at 42. In addition there is support in the February 17, 2003 and March 6, 2003 medical reports of Dr. Martin. Exhibit L at 125 120. Further, we note that Dr. Lipkin’s report did not mention the incident involving the coat-rack and the report is susceptible of various inferences. In any event, the existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant next contends the ALJ erred in her Findings of Fact, Conclusions of Law, and Order at 8, ¶ 41. The ALJ found that the claimant only sustained a bruise that resolved within a few days, that she missed no work and that she required no medical care. The claimant argues that the evidence compels a finding that the place she was struck on continued to remain painful when pressed upon and that the significance was not understood by either the claimant or the treating physicians until she started having additional symptoms such as dizziness. Again, we disagree. Following the coat-rack incident on August 2, 2002, the claimant saw Dr. Martin on October 28, 2002, December 23, 2002, January 13, 2003, and January 22, 2003. The records from these medical visits contain no reports of any symptoms related to the accident. Exhibit L at 143, 131, 128, 127. Consequently, there is substantial evidence in the record supporting the ALJ’s finding and it must be upheld on review Kroupa v. Industrial Claim appeals Office, 53 P.3d 1192
(Colo.App. 2002).
The claimant finally contends the ALJ erred in her Findings of Fact, Conclusions of Law, and Order at 8, ¶ 42. There the ALJ found that the claimant’s symptoms might have been caused by the antibiotics because they began immediately after the claimant began taking the antibiotics. The ALJ also concluded that the claimant had not demonstrated by a preponderance of the evidence that her current symptoms were related to the coat-rack incident. In support of her argument the claimant cites certain evidence in the record, including opinions by Dr. Esses and Dr. Lipkin.
However, as previously noted, the record contains ample evidence from which the ALJ could reasonably infer that the claimant’s symptoms began after taking the antibiotics. Report of Dr. Martin (March 6, 2003), Exhibit L at 120. Moreover, the record contains other medical opinions, including Dr. Foster’s, who stated that the coat-rack incident did not seem to have any relationship to her symptoms of dizziness, which did not incur at the time of the injury and had not changed in spite of neck therapy. Exhibit D at 7. Dr. Burnham also opined that she did not believe that the coat-rack trauma caused the dizziness. In Dr. Burnham’s opinion, the symptoms would have been present immediately and would likely then have improved. Exhibit C at 4.
The claimant’s arguments essentially request that we substitute our judgment for that of the ALJ concerning the cause of the claimant’s symptoms. We have no authority to reweigh the evidence on review, and decline the claimant’s invitation to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). We have considered the claimant’s additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 12, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ Curt Kriksciun ___________________________________ Thomas Schrant
Janice Romine, Air Wisconsin Airlines Corporation, Jenny Voight, Appleton, WI, Insurance Co. of the State of Pennsylvania, c/o AIG Claim Services Inc., Carol Keim, Shawnee Mission, KS, Robert Turner, Esq., Denver, CO, (For Claimant).
Senter, Goldfarb Rice, LLC, William Sterck, Esq., Denver, CO, (For Respondents)