W.C. No. 4-728-045.Industrial Claim Appeals Office.
August 15, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated January 29, 2008 that dismissed the claim for workers’ compensation benefits . We affirm.
The ALJ made the following pertinent findings of fact. The claimant testified that on May 10, 2007 during her work for the employer she lifted a heavy pan and injured her shoulders. The claimant further testified that although she reported the work injury to the assistant manger she was not offered medical treatment. The claimant further testified that she never observed a posting in the workplace concerning the employer’s workers’ compensation policies or a posting directing employees to seek medical treatment from an authorized provider of medical care. The assistant deli manager testified that the claimant reported to her that she had shoulder pain, which the claimant attributed to arthritis. The assistant deli manager testified that the employer maintained the required notices to employees about the employer’s workers’ compensation procedures. The assistant store manager testified that he first learned of the claimant’s alleged work injury on June 3, 2007.
The ALJ found that the claimant and the respondents’ witnesses were equally credible. However, the ALJ found that the contradictions in the claimant’s action and reports of the alleged work injury left significant doubt whether the injury occurred. The ALJ, noting that there was a divergent version of events, concluded that the clamant had not tipped the scale in her favor establishing by at least 51 percent of the evidence that her version of events was true. Consequently, the ALJ denied and dismissed the claim for workers’ compensation benefits.
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On appeal, the claimant contends the ALJ misapplied the evidentiary burden of proof when she found both the claimant and the respondent’s witnesses to be credible. The claimant argues that the respondent’s evidence did not refute that the claimant injured herself at work. We are not persuaded that the ALJ committed error in her application of the burden of proof.
The ALJ’s order contains a discussion of the law relevant to the evidentiary burden of proof. Thus the ALJ expressly noted that a claimant in a workers’ compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. 2007. She also concluded that a preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). She stated that the facts in a workers’ compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer, and that a workers’ compensation case should be decided on its merits. Section 8-43-201, C.R.S. 2007. In our view, the ALJ correctly stated the law regarding the burden and quantum of proof applicable in workers’ compensation proceeding.
Here there is support in the record for the ALJ’s finding that the assistant deli manager testified that the claimant reported to her that she had shoulder pain, which the claimant attributed to arthritis. Tr. 52 54. The assistant deli manager also testified that the employer maintained the required notices to employer about the employer’s workers’ compensation procedures. Tr. The assistant store manager testified that he first learned of the claimant’s work injury on June 3, 2007. Tr. 67
We must uphold the factual determinations of the ALJ if they are supported by substantial evidence in the record. Section 8-43-301(8) Christie v. Coors Transp. Co., 919 P.2d 857, 860(Colo.App. 1995), aff d 933 P.2d 1330 (Colo. 1997); see also City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995)(ALJ’s decision may be set aside only if the ALJ’s finding are not supported by the evidence), aff’d sub nom. Price v. Indus. Claim Appeals Office, 919 P.2d 207(Colo. 1996).
Whether there is substantial evidence to support the ALJ’s decision is a question of law, but the evidence must be viewed as a whole in the light most favorable to the prevailing party. City of Loveland Police Dep’t v. Indus. Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006). We do not agree with the claimant that the respondent’s testimony does not dispute that the claimant was injured while working for the employer. In our view a reasonable inference can be drawn from the testimony presented by the employer that the claimant was not injured lifting a heavy pan as she alleged.
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Here the claimant’s testimony conflicted with the testimony of the assistant deli manager. Given the direct contradictions in testimony we acknowledge that the ALJ’s finding that the claimant’s testimony was credible is difficult to reconcile with the ALJ’s finding that there was equally credible evidence presented by the respondents.
However, we note that the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Further, as we read the ALJ’s order, this is a situation where the evidence on the threshold issue of compensability was found by her to be evenly balanced and the party with the burden of proof bears the risk of non-persuasion. See Holmes v. Gamble, 655 P.2d 405 (Colo. 1982) (where the probabilities are at best evenly balanced between negligence and its absence, it becomes the duty of the court to direct a verdict for the defendant).
Generally, the burden of proof rests upon the party who asserts the affirmative of an issue. The test is to determine which party would be successful if no evidence were given; then, the burden of proof is placed on the adverse party. Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983); Valley Tree Service v. Jimenez 787 P.2d 658
(Colo.App. 1990). In a workmen’s compensation case, the claimant undeniably has the initial burden of proving his entitlement to benefits by a preponderance of the relevant evidence. See Upchurch v. Industrial Commission, 703 P.2d 628 (Colo.App. 1985). The standard is met when a contested fact is “more probable than its nonexistence.” Indus. Comm’n v. Jones, 688 P. 1116, 1119 (Colo. 1984) (quoting People v. Taylor, 618 P.2d 1127, 1135(Colo. 1980)). We are persuaded that ALJ recognized the proper burden of proof and, based on her factual determinations, resolved the conflicts in the evidence by determining that the claimant had not sustained her burden of proof. This is true notwithstanding the ALJ’s general observation that the claimant was a credible witness. In our view, the ALJ’s perception that the claimant was generally credible and was therefore not deliberately falsifying her testimony does not compel the ALJ to have concluded that a compensable injury occurred. As we read the ALJ’s order, she credited the respondent’s evidence that the claimant originally attributed her symptoms to “arthritis” and, despite the ALJ’s general view that the claimant was credible, she concluded that the claimant had failed to carry her burden of proving a compensable injury. Having resolved the conflicting evidence in this manner, the ALJ’s denial of the claim is consistent with her resolution of the conflicts in the evidence. Under these circumstances, we are unpersuaded to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued January 29, 2008 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
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BARBARA SLATTERY, PERIE, CO, (Claimant).
SEDGWICK CMS, Attn: MS SHARMIE JENSEN, LEXINGTON, KY, (Insurer).
THE FRICKEY LAW FIRM, Attn: PAUL H LEIBOWITZ, ESQ., LAKEWOOD, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BENJAMIN P KRAMER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: MS JANELLE PURLES, SALT LAKE CITY, UT, (Other Party).