W.C. No. 4-622-699.Industrial Claim Appeals Office.
December 15, 2005.
FINAL ORDER
The claimant seeks review of an order dated June 1, 2005, of Administrative Law Judge Martinez (ALJ) that denied and dismissed his claim for compensation. We affirm.
The claimant on July 14, 2004, during his employment with the employer, drove a shuttle car over rough terrain. The claimant was jostled causing him to hit his head on the roof. The claimant was wearing a hard hat and there was no observable damage to it following the incident. There were no bruises or bumps on the claimant’s head.
The ALJ, on conflicting evidence, found that the claimant merely mentioned the incident to his supervisor. The claimant did not report any symptoms or request any medical care. The claimant said he would not be at work the next day because he needed to assist in the preparations for his upcoming wedding on July 16, 2004. The claimant had arranged time off from work from July 16, 2004 through July 21, 2004 in order to get married. During this period, the claimant and his fiancé planned a horseback trip into the back country as a honeymoon.
The horseback trip was canceled by the claimant. The claimant subsequently told the insurer’s investigator, Dr. Meilner and Dr. Brodie that he had, in fact, gone on the horseback trip, statements that the claimant conceded at the hearing were untrue.
On July 22, 2004, the day that the claimant was scheduled to return to work, he telephoned his supervisor to say he had to cut his honeymoon trip short because of neck pain he attributed to the July 14, 2004 incident.
The ALJ found that although the claimant denied preexisting cervical symptomatology, medical records from December 2003 through March 2004 referred to cervical complaints sufficient to warrant an MRI of the claimant’s cervical spine on February 10, 2004. The ALJ found that the claimant did suffer cervical spine symptomatology before July 14, 2004.
The claimant saw Dr. Meilner on July 23, 2004 who diagnosed a whiplash-type injury and ordered an MRI. The claimant’s cervical MRI was normal. The claimant was examined by Dr. Brodie at the insurer’s request. Dr. Brodie determined that the claimant had chronic cervical and shoulder girdle pain. Dr. Brodie testified that the claimant’s neck symmetry resulting in stiffness likely derived from years of physical labor, and that the claimant’s cervical MRI both before and after July 14, 2004 were normal, and that the medical records reflect preexisting symptoms. The ALJ found that, according to Dr. Brodie, these facts coupled with his examination of the claimant’s hard hat and configuration of the shuttle car all support a conclusion that the claimant’s cervical symptoms were not caused or aggravated by the July 14, 2004 incident.
Based on these findings, the ALJ determined that although the claimant struck his head on the roof of the shuttle car while driving it on July 14, 2004 the evidence did not establish the incident as a causal or aggravating factor in the claimant’s subsequent cervical symptomatology. Rather the ALJ found that the claimant’s cervical problems after July 14, 2004 were a manifestation of his chronic cervical and shoulder pain, consistent with Dr. Brodie’s conclusion on the matter of causation.
On review the claimant argues that the ALJ erroneously relied upon Dr. Brodie’s report because his conclusions were based upon a fact not supported by the evidence. We disagree.
The unsupported fact the claimant argues Dr. Brodie erroneously relied on was that the claimant had gone horseback riding. The claimant admitted that he lied to Dr. Brodie and others when he said he went horseback riding. Tr. (4-18-04) at 57-58. The ALJ found in his order that the horseback trip was canceled. The claimant argues that the opinion of a medical expert based on assumed facts at variance with the actual facts of the case does not constitute substantial evidence.
The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. § 8-41-301(1)(c), C.R.S. 2005. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141
(Colo.App. 1998). 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).
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). 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). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or 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).
It is the ALJ’s sole prerogative to ascertain the probative weight of the evidence.
We agree with the claimant that the misinformation given by him to Dr. Brodie might have played a role in the doctor’s causation analysis. However, this goes to the weight given by the ALJ to Dr. Brodie’s testimony. The ALJ took note of other portions of Dr. Brodie’s testimony such as the claimant’s neck symmetry resulting in stiffness likely derived from years of physical labor, Tr. (4-18-05) at 75-76; the claimant’s cervical MRI taken before and after the date of the claimed accident were normal, Tr. (4-18-05) at 76-77; and that the medical records reflected preexisting symptomatology. Tr. (4-18-05) at 77-79. The ALJ is free to credit all or part of the medical expert’s opinions Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We have no difficulty ascertaining the ALJ’s dispositive factual findings, which fully support his conclusion that the claimant failed to prove a compensable injury. As it was his prerogative to do, the ALJ resolved the conflicting evidence. He expressly credited the testimony of Dr. Brodie which supports the conclusion that the claimant’s cervical symptomatology was not caused or aggravated by the July 14, 2004 incident. The existence in the record of inconsistencies or evidence from which the ALJ could have drawn contrary inferences does not provide a basis for setting aside his order. Cordova v. Industrial Claim Appeals Office, supra.
The claimant further argues that the evidence does not support the ALJ’s finding of fact that the claimant had preexisting cervical spine symptomatology. We disagree. The claimant had an MRI performed on February 11, 2004 for pain at the cervical levels designated C-5 through T-2. Exhibit C at 32. The claimant also saw a chiropractor on December 29, 2003 for neck problems. Exhibit F at pg. 45. This evidence supports the ALJ’s findings and we perceive no basis on which to interfere with the those findings.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 1, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Donald Russell, Paonia, CO, Steve Lewis, Oxbow Mining, LLC, Somerset, CO, Legal Department, Pinnacol Assurance — Interagency Mail Richard T. Gurley, Grand Junction, CO, (For Claimant).
Paul D. Feld, Esq. and T. Paul Krueger, II, Denver, CO, (For Respondents).