W.C. No. 4-181-208, 4-267-999Industrial Claim Appeals Office.
May 30, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ) insofar as the ALJ denied his claim for benefits as a result of an injury allegedly occurring on July 27, 1995. We affirm.
It is undisputed that the claimant sustained a compensable wrist injury on October 31, 1992, and was compensated in the claim denominated as W.C. No. 4-181-208. As a result of this injury, the claimant underwent a right wrist fusion performed by Dr. Duncan.
Subsequently, the claimant filed the claim denominated as W.C. No. 4-267-999. At the hearing, the claimant testified that he reinjured his right wrist on July 27, 1995 when he dropped a recliner on it. However, the ALJ found this testimony incredible for several reasons.
First, the ALJ found that the claimant was examined by Dr. Turner on August 2, 1995. Dr. Turner’s note reflects that the claimant gave a history of developing wrist pain four or five days previously without any specific injury. The claimant was next seen by Dr. Adnan, on August 15, 1995. Dr. Adnan’s note indicates that the claimant gave a history of “repetitive trauma to the right wrist.” The claimant was then examined by Dr. Duncan on August 31, 1995. At that time, the claimant gave a history of jamming his right hand when the handle on a recliner slipped. Finally, the claimant advised an occupational therapist that he injured himself when “moving a heavy rocker.”
In view of the disparity between the claimant’s testimony and the medical reports, the ALJ concluded that the claimant failed to prove an injury arising out of and in the course of his employment on July 27, 1995. The ALJ was especially persuaded by the fact that the claimant failed to give Dr. Turner a history of a specific work-related injury.
On review, the claimant contends that the ALJ “abused his discretion” in failing to find a compensable injury on July 27. In support of this contention, the claimant relies on his hearing testimony in which he disputed the correctness of Dr. Turner’s note. (Tr. May 13, 1996 pp. 23-24). The claimant also argues that his testimony was consistent with some of the medical evidence, including the history he gave to Dr. Duncan. Finally, the claimant argues that the distinction between a recliner and a rocker is of no significance. We reject these arguments.
The question of whether the claimant carried his burden of proof to establish a work-related injury is one of fact for resolution by the ALJ. City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
The claimant’s assertion notwithstanding, we do not review findings of fact under an “abuse of discretion standard.” Rather, the substantial evidence test requires us to determine whether the record contains sufficient evidence that a rational fact-finder could find it adequate to support a conclusion without regard to the existence of conflicting evidence or contrary inferences. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In applying this test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Here, the ALJ explicitly discredited the claimant’s testimony concerning the alleged injury because it is inconsistent with much of the medical evidence. As the ALJ pointed out, the claimant’s testimony is subject to doubt in view of the fact that he failed to report the injury to Dr. Turner less than a week after it allegedly occurred. This fact, taken with the other inconsistencies in the evidence, provides ample support for the ALJ’s finding that the claimant failed to carry his burden of proof. See Smith v. Dept. of Labor, 494 P.2d 598 (Colo.App. 1972) (not selected for official publication) (inconsistencies in testimony formed sufficient basis for determination that claimant was not credible and had failed to sustain his burden of proving a compensable injury).
It is true that some evidence in the record, including the claimant’s testimony, might support contrary findings and conclusions. However, we are not free to substitute our judgement for that of the ALJ concerning the weight and credibility of the evidence. City of Durango v. Dunagan, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 11, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed May 30, 1997 to the following parties:
Harold L. Schnorr, 1017 Juliana Dr., Loveland, CO 80537
Weberg Enterprises, Inc., 5333 Bannock St., Denver, CO 80216-1623
Nationwide Mutual Fire Ins. Co., 7990 IH-10 West, P.O. Box 101515, San Antonio, TX 78230
Liberty Mutual Fire Ins., Attn: Margaret Malone, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Kristi J. Coffin, Esq., 1319 Eighth St., Greeley, CO 80631 (For the Claimant)
Harry A. King, Jr., Esq., 679 Grant St., Denver, CO 80203 (For Nationwide Respondents)
Raymond Melton, Esq., David G. Kroll, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For Liberty Mutual Respondents)
By: ___________________________________________________