W.C. No. 4-520-823Industrial Claim Appeals Office.
June 21, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed the claim for workers’ compensation benefits. The claimant contends the ALJ’s findings are not supported by substantial evidence. We affirm.
The claimant, who was employed as a school custodian, alleged that she injured her shoulder on September 24, 2001, while attempting to close a file cabinet drawer. The claimant’s evidence might also be construed as an allegation that the duties of her employment aggravated a preexisting shoulder condition.
The claimant testified that she injured her right shoulder while attempting to close the file drawer. However, the ALJ credited the testimony of the claimant’s supervisor and school principal that the claimant declined to file a first report of injury because, she said, the shoulder injury occurred at home while installing tile. (Tr. Pp. 75, 86).
Under these circumstances, the ALJ found the claimant failed to satisfy her burden of proof to establish that she injured her shoulder at work on September 24. In support, the ALJ noted that during cross-examination the claimant “did not deny” that she told the supervisor and principal that she injured the shoulder at home.
On review, the claimant contends the ALJ’s finding that the claimant failed to prove a compensable injury is not supported by substantial evidence. The claimant disputes the finding that on cross-examination she “did not deny” telling the supervisor and principal that she injured the shoulder at home. The claimant also argues that if she had been injured at home, she would not have been able to continue performing the duties of her employment. We perceive no error.
The claimant had the burden of proof to establish that she sustained an injury arising out of and in the course of her employment. 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 the issue is factual in nature, 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 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).
The claimant’s assertion notwithstanding, the record supports the finding that on cross-examination the claimant “did not deny” telling the supervisor and principal that she injured the shoulder at home. The following colloquy occurred on cross-examination of the claimant’s rebuttal testimony:
Q: Why do you think Manny Ortega would sit here today and testify that you told him you hurt yourself while you were tiling your house?
MR. CONNELL: Objection, calls for speculation.
THE COURT: Ms. Thornburgh.
MS. THORNBURGH: I think she stated that he has made this accusation, and she can state grounds for why it was made.
THE COURT: I will overrule the objection and allow Claimant to answer.
THE WITNESS: It was just a comment I made. And at the time I was injured I was a little embarrassed, opening a desk drawer and jamming. It was just a comment. All the things that I have done, I was very active. All of the time I worked. I was in good, good shape.
Q (BY MS. THORNBURGH): You are not denying you told Manny Ortega that?
A: No, I am not denying that. I said all of the things I had done, that I got hurt at work. (Emphasis added).
Thus, the record contains substantial evidence to support the ALJ’s finding that the claimant did not deny telling the supervisor and principal that she injured the shoulder at home. It is true that during the initial cross-examination the claimant did deny telling the supervisor and principal that she injured herself at home. (Tr. P. 24). However, the ALJ implicitly resolved this inconsistency against the claimant. See Monfort, Inc. v. Industrial Claim Appeals Office, 867 P.2d 122 (Colo.App. 1993) (ALJ may resolve inconsistency by crediting only part of testimony given by witness).
Insofar as the claimant argues that she could not have continued to work if she injured her shoulder at home, we conclude the record does not compel that conclusion. First and foremost, the ALJ discredited the claimant’s testimony that she injured herself at work, and credited the testimony that she admitted injuring herself at home. Further, the claimant testified that she was having shoulder pain before September 24 while carrying a vacuum cleaner. (Tr. P. 37). The fact that some evidence in the record might support a different result affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, supra.
The claimant also contends the ALJ failed to consider the theory that the duties of employment aggravated a preexisting condition. However, the ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law. Rather, it is sufficient if the ALJ enters findings concerning the evidence which he finds dispositive. Evidence and legal theories inconsistent with the order are considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ credited evidence the claimant injured herself at home, not on the job. Implicit in that determination is the conclusion the claimant was not persuaded that the claimant’s injury was caused or aggravated by her employment in any way. Therefore, we perceive no error in the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 20, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on June 21, 2004 by A. Hurtado.
Joy Sanchez, 220 Annabel Ln., Fort Collins, CO 80525
Thompson School District, 535 N. Douglas Ave., Loveland, CO 80537
Legal Department, Pinnacol Assurance — Interagency Mail
John M. Connell, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Claimant)
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)