W.C. No. 4-707-830.Industrial Claim Appeals Office.
December 28, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated September 4, 2007 that denied his claim for compensation. We affirm.
Several of the ALJ’s findings of fact are summarized as follows. The claimant worked as a supervisor for the respondent employer, which is a drywall company. Prior to his employment with the respondent employer, the claimant sustained several back injuries relating to previous work and requiring multiple surgeries. The claimant continued to have pain and require medical treatment, including medications, after these injuries.
On November 17, 2006, the claimant was assigned the task of counting bags of insulation. He recruited a co-worker to help him count the bags. The co-worker testified that he climbed onto the stack of bags and moved them as the claimant tracked the count on paper. According to the co-worker, the claimant did not move or throw any bags. The co-worker further testified that the claimant did not appear to be injured after the count was completed. The claimant, on the other hand, testified that he moved bags during the counting process and felt a pop in his back, accompanied by radiating pain, after he threw a bag weighing about 100 pounds. After work that day the claimant drove two co-workers from the job site, but did not mention any injury to them or display any signs of being injured. The claimant did not report an injury to the employer or seek medical treatment at that time. Instead, the following Monday the claimant appeared to be injured, but waited a couple more days to report a back injury to the employer.
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The claimant subsequently received medical treatment from Dr. Karli; however, the claimant did not completely disclose his medical history, including four prior back surgeries, to Dr. Karli. Dr. Lankenau conducted an independent medical examination of the claimant and then observed a video surveillance tape of the claimant. The ALJ credited Dr. Lankenau’s opinion that if the claimant had sustained an industrial incident on November 17, 2006, he had returned to his baseline condition by December 30, 2006. Dr. Lankenau also opined that any medical treatment that the claimant required was not related to the November 17, 2006 incident. The ALJ discounted Dr. Karli’s opinions because he lacked information about the claimant’s pre-existing lower back condition. The ALJ considered the evidence presented and determined that the claimant failed to establish that he had sustained a compensable injury. The ALJ therefore denied and dismissed the claimant’s request for medical benefits.
On appeal the claimant asserts that the ALJ erred by not crediting evidence in the record that would support a finding of compensability. The claimant urges us to reconsider the evidence; however, we may not reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Furthermore, the Panel’s review is limited to the record developed before the ALJ. Therefore, we may not consider the additional information accompanying the claimant’s written argument. See § 8-1-102(2), C.R.S. 2007 (Panel had duty and power to conduct administrative appellate review). In any event, we have reviewed relevant portions of the record and cannot say that the ALJ erred in determining that the claimant failed to carry his burden to establish a compensable claim.
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. Section 8-41-301(1)(c), C.R.S. 2007. 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. § 8-43-301(8), C.R.S. 2007; 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant
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appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The record contains substantial evidence to support the ALJ’s factual findings. The ALJ was persuaded that the claimant’s back problems were the result of “the natural progression of his pre-existing back condition.” Findings of Fact, Conclusions of Law, and Order at 8, ¶ 6. Dr. Lankenau, an orthopedic spine surgeon, testified about the claimant’s condition. Tr. at 229. He reviewed medical records concerning the claimant dating back to 1999. Tr. at 238. There were no significant changes in MRI scans of the claimant from 2001 to 2006. Tr. at 244. Dr. Lankenau described the claimant as having been provided “ongoing chronic pain medication for his low back.” Tr. at 253. He observed the claimant behaving differently on surveillance video than he did when presenting to Dr. Lankenau. Tr. at 249-50. Dr. Lankenau further testified that any aggravation that the claimant sustained in an incident at work was temporary and resolved by the time of the surveillance video. Tr. at 257. He also stated that the claimant did not continue to need any corresponding medical care. Tr. at 258. The claimant’s co-worker, Mr. Reif, described counting the bags of insulation with the claimant. He denied that the claimant ever jumped up on any insulation. Tr. at 217. He did not recall the claimant moving any insulation. Tr. at 218. He stated that the claimant did not appear to be injured on November 17, 2006. Tr. at 218. He denied being told that day by the claimant that the claimant was injured. Tr. at 219.
The responsibility of weighing the evidence to determine its persuasive value and probative force is allocated almost exclusively to the ALJ. On review, we may only interfere with his decisions in this respect in the extremely unusual circumstances where the evidence he credited is rebutted by such hard, certain contrary evidence as to make his decision an error of law. Halliburton Services v. Miller, 720 P.2d 571
(Colo.App. 1986). Here, the claimant assertion that the testimony presented by the respondents’ was not true falls short of the showing necessary to render the ALJ’s decision to credit portions of that testimony an error of law. See People v. Ramirez, 30 P.3d 807
(Colo.App. 2001) (biased, inconsistent and conflicting testimony is not incredible as a matter of law). Accordingly, we reject the claimant’s argument that the ALJ erred in crediting the testimony presented by the
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respondents’ witnesses and concluding that the claimant had not sustained a compensable injury.
Finally, to the extent that the claimant expresses dissatisfaction with the presentation of his case, we find nothing in the record, and the claimant does not specify any procedural defects, indicating that the claimant was prevented from litigating his claim. See Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935) (parties expected to present all of their evidence at appointed hearing before ALJ).
IT IS THEREFORE ORDERED that the ALJ=s order dated September 4, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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MARK E SIMMONS, PO BOX 4818, BUENA VISTA, CO, (Claimant).
ELITE DRYWALLERS, INC, GLENWOOD SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ, LOWERY.
BLVD, DENVER, CO, 80230 (Insurer).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: THOMAS STERN, ESQ., DENVER, CO, (For Respondents).
M STUART ANDERSON, ESQ., SALIDA, CO, (Other Party).
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