W.C. No. 4-497-522Industrial Claim Appeals Office.
February 19, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged a right shoulder injury on Friday, February 2, 2001, while pulling a file from a shelf. There were no witnesses to the alleged injury. (Tr. March 11, 2002, p. 58).
The claimant testified she immediately reported the injury to her supervisor, Ms. Ortega. However, Ms. Ortega denied any report of injury on February 2. (Tr. March 11, 2002, p. 53).
On February 4, the claimant sought emergency treatment for right shoulder pain and gave a history of injuring herself while reaching for a file at work on Friday. On February 5 the employer referred the claimant to Dr. Ramaswamy, who testified that throughout the course of his treatment the claimant demonstrated pain symptoms and impaired range of motion consistent with symptom magnification. On May 23, 2001, Dr. Ramaswamy placed the claimant at maximum medical improvement (MMI) without permanent medical impairment. The respondents filed a Final Admission of Liability consistent with Dr. Ramaswamy’s opinions. The claimant objected and requested a Division-sponsored medical examination (DIME).
The DIME physician opined there was no evidence the claimant did not have a shoulder injury. Further, the DIME physician opined the claimant was not at MMI and referred the claimant to a orthopedic surgeon. In December 2001, the claimant underwent a distal clavicle resection and acromioplasty.
Crediting the testimony of the employers’ witnesses, the ALJ found that at approximately 11:00 a.m. on February 2 the claimant obtained permission to leave work early because she was sick to her stomach. (Tr. March 11, 2002, p. 48). In contrast, the ALJ found the claimant’s testimony “inherently contradictory, replete with dissembling, unreliable and untrustworthy.” (Finding of Fact 40). Under these circumstances, the ALJ determined the claimant’s testimony that she suffered a work-related shoulder injury on February 2 was materially false. Further, the ALJ determined the respondents’ Final Admission was based on the materially false information provided by the claimant. Therefore, the ALJ determined the respondents’ Final Admission of Liability was void ab initio and granted the respondents’ request for retroactive relief from the Final Admission.
On review, the claimant contends, inter alia, that the uncontested medical evidence compelled the ALJ to find the claimant suffered a compensable right shoulder injury. In particular, the claimant contends the ALJ was bound by the DIME physician’s opinion concerning the cause of the claimant’s right shoulder problems because the respondents failed to overcome the DIME physician’s opinion by clear and convincing evidence to the contrary. We disagree.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions and must occur while the claimant is “performing service” arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2002. Whether the claimant has sustained her burden to prove the requisite nexus between the injury and her employment is a question of fact for resolution by the ALJ. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Consequently, we are bound by the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this legal standard, 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).
Further, medical evidence is neither required nor conclusive on the issue of causation. However, insofar as medical evidence is presented, it is the ALJ’s sole prerogative to determine the probative value of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Contrary to the claimant’s further contention, the ALJ was not required to afford any special weight to the DIME physician’s opinion on the cause of the claimant’s right shoulder condition. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Indeed the DIME physician’s opinions have only been given presumptive effect where expressly required by § 8-42-107(8), C.R.S. 2002, on the issues of MMI and permanent impairment. Cordova v. Industrial Claim Appeals Office, __P.3d __(Colo.App. No. 01CA0852, February 28, 2002). Rather, causation is a threshold requirement which the claimant was required to prove by a preponderance of the evidence. Faulkner v. Industrial Claim Appeals Office, supra. It follows that the ALJ did not misapply the law in failing to require the respondents to overcome the DIME physician’s opinion that the claimant suffered a compensable right shoulder injury.
As argued by the claimant, the record contains medical evidence that the claimant’s right shoulder pathology is consistent with her report of a work-related injury on February 2. However, because the ALJ found the claimant’s testimony unreliable, the ALJ reasonably inferred that the medical reports which were predicated on the claimant’s report of the alleged injury on February 2 were also unreliable. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (reviewing court may consider findings which are necessarily implied by the ALJ’s order). Consequently, the medical reports which reflect the claimant’s report of a work-related injury on February 2 do not compel an award of benefits.
Moreover, the ALJ was not required to credit the claimant’s testimony and his finding that the claimant’s testimony was internally inconsistent is amply supported by the record. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Therefore, we cannot say the ALJ erred as a matter of law in refusing to credit the claimant’s testimony concerning the alleged injury on February 2. Halliburton Services v. Miller, supra. Accordingly, the claimant has failed to establish grounds which afford us a basis to interfere with the ALJ’s order.
In view of our disposition, we need not address the claimant’s arguments in support of her contention that the ALJ erroneously denied temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 28, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Robert M. Socolofsky
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 _________ February 19, 2003 ___________to the following parties:
Sandra Torrence, 3561 Monroe St., Denver, CO 80205-4363
Candice O’Rourke, University Hospital, 4200 E. 9th Ave., Campus Box A028, Denver, CO 80262
Legal Department, Pinnacol Assurance — Interagency Mail
D. Dale Sadler, Esq., 5251 DTC Pkwy., #690, Greenwood Village, CO 80111 (For Claimant)
Fred Ritsema, Esq. and Dawn Watts, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: __________A. Hurtado__________