W.C. No. 4-506-053Industrial Claim Appeals Office.
November 25, 2002
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove he suffered a work-related injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged a left shoulder injury on Friday, April 27, 2001, while laying pipe as a laborer. The claimant testified he was thrown back against the wall of a ditch when the backhoe operator, Jeff Richardson, accidentally struck a pipe the claimant was holding with the backhoe. Jeff Richardson denied the incident.
The ALJ’s pertinent findings may be summarized as follows. The claimant worked the remainder of his shift on April 27 without reporting any injury or demonstrating any pain behaviors. The claimant did not report a shoulder injury when he sought treatment at the Penrose Hospital Emergency Room on April 29, 2001. When the claimant called in sick on the morning of Monday, April 30, 2001, he did not report a work-related injury. Instead, the claimant did not report the alleged work injury until 1:30 p.m. that day when he called the owner of the company. The employer referred the claimant to Dr. Lund for treatment.
Dr. Lund opined the claimant’s history of injury was not consistent with the history provided to the emergency room on April 29. Dr. Lund also observed limited range of motion but no bruising on the left shoulder. X-rays revealed a preexisting degenerative joint disease. An MRI on June 1, 2001, revealed tendinitis, a rotator cuff tear and a bone spur in the AC joint with mild impingement syndrome, which was surgically treated on June 22.
Based on these findings, the ALJ found the claimant proved it was possible but failed to prove it was probable he injured his left shoulder at work on April 27, 2001. In support, the ALJ concluded that if the claimant suffered a rotator cuff injury on April 27, 2001, he would have experienced pain within 24 hours. Therefore, the ALJ discredited the claimant’s testimony that he was injured on April 27, 2001.
On appeal the claimant contends there is evidence which was not presented and, thus, not considered by the ALJ due to inadequate representation by his attorney. The claimant also contests the sufficiency of the evidence to support the ALJ’s findings of fact. We perceive no error in the ALJ’s order.
Only those injuries that arise out of and in the course of employment are compensable under the Colorado Workers’ Compensation Act. Section 8-41-301(1)(b), C.R.S. 2002. This requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship and during an activity that had some connection with the employee’s job-related functions. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991).
Whether the claimant has met his burden to prove a causal connection between the employment and his injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002.
Moreover, our authority to review the ALJ’s order is defined in §8-43-301(8). Section 8-43-301(8) does not authorize us authority to consider the “adequacy” of representation provided by a party’s attorney. Accordingly, insofar as the claimant argues that the failure to present certain evidence was the result of the “ineffective assistance” of counsel, we cannot alter the ALJ’s order on this basis.
We also note that parties are expected to present all of their evidence at the appointed hearing before the ALJ, and our review is limited to the record before the ALJ. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935); City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Therefore, we have not considered the additional factual assertions made by the claimant on appeal.
There was a direct conflict between the claimant and the employer’s witnesses concerning the alleged industrial accident. The claimant’s arguments notwithstanding, it was solely the province of the ALJ to resolve the conflict in the evidence. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
We have reviewed the record and the ALJ’s findings of fact. The disputed findings are supported by substantial evidence in the deposition testimony of Tom Richardson ( ee pp. 16, 19, 22-23); the testimony of Frank Mason (see Tr. p. 269-281); Jeff Richardson (see Tr. p. 253) and Linda Richardson (see Tr. pp. 140, 141). Furthermore, even though the claimant disputes the inferences drawn by the ALJ from the medical evidence, we conclude the disputed inferences are supported by the Penrose Hospital Emergency Room report which was submitted as Claimant’s Hearing Exhibits 1 and 2, and Dr. Lund’s deposition testimony. (See Lund pp. 17, 19, 30). Consequently, the ALJ’s findings are binding on review and it is immaterial the record contains some evidence, including the claimant’s testimony and the Claimant’s Answers to Interrogatories, which, if credited, might support a contrary determination. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (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 testimony or contrary inferences).
The claimant’s remaining arguments essentially contest the ALJ’s credibility determinations. The claimant argues the ALJ erred in discrediting his testimony and the testimony of Ms. Tuiletufuga. Further, the claimant contends that because Jeff Richardson is the son of the owner of the employer’s company, he falsified his testimony. Consequently, the claimant contends the ALJ erred in relying on Jeff Richardson’s testimony to find the claimant failed to prove he was injured at work on April 27.
The ALJ was not required to credit either the claimant’s testimony or the testimony of Ms. Tuiletufuga. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Further, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Jeff Richardson’s testimony was corroborated by the testimony of Frank Mason. (See Tr. pp. 269-281). Under these circumstances, we cannot say the ALJ erred as a matter of law in crediting Jeff Richardson’s testimony.
Finally, we have no authority to reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994). Accordingly, we reject the claimant’s arguments insofar as he requests that we substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence presented in favor of claim. Moreover, the ALJ’s findings support the conclusion the claimant failed to prove entitlement to workers’ compensation benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 5, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Kathy E. Dean
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 decision were mailed ___________November 25, 2002 ______to the following parties:
Pete M. Santos, 4241 Kincannon Dr., Colorado Springs, CO 80916
Adams Excavating, Inc., 6425 E. Platte Ave., Colorado Springs, CO 80915
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Renee C. Ozer, Esq., 18 E. Monument St., Colorado Springs, CO 80903
David L. Smith, Esq. and Jonathan Ward, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Hurtado