W.C. No. 4-581-201.Industrial Claim Appeals Office.
August 16, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which found the claimant sustained a compensable injury and awarded workers’ compensation benefits. We affirm.
The ALJ found the claimant suffered a disc herniation at L5-S1 on March 20, 2003 while lifting a heavy floor jack into a customer’s vehicle. Previously, on March 13, 1995, the claimant treated for low back pain. The claimant denied any ongoing symptoms from the 1995 injury. However, the respondents witnesses testified that the claimant complained of ongoing low back pain between March 1995 and March 2003. Therefore, the respondents argued the herniated disc was caused by a natural progression of the pre-existing condition and not the incident on March 20, 2003.
The ALJ found the March 1995 low back condition was diagnosed as a “strain” and that after one medical examination the claimant was discharged with a prescription for medication, rest and heat on the affected area. Further, the ALJ found the March 1995 condition “resolved completely requiring no further medical attention,” and the claimant, “has not had a recurrence of symptoms since then except for the occasional backache after a physically demanding day at his job.” Therefore, the ALJ rejected the respondents’ theory that the disc herniation was not work related.
On review, the respondents contend the ALJ failed to consider the testimony of the respondents’ witnesses who stated they observed the claimant complained of low back pain and walked with a limp prior to March 20, 2003. The respondents also contend the ALJ failed to resolve the conflict between the claimant and the respondents’ witnesses on this issue. Alternatively, the respondents argue the ALJ’s failure to articulate the basis for his credibility determinations was reversible error. The respondents allegations are without merit.
Contrary to the respondents’ contention the ALJ expressly recognized the respondents’ contention that the herniated disc was caused by the 1995 low back injury. The ALJ also explicitly acknowledged testimony that the claimant demonstrated “persistent symptoms” of low back pain prior to March 2003. (See Finding of Fact 15).
Further, the ALJ did not find there was “no evidence” to support the respondents’ defense theory. Rather, the ALJ acknowledged that there was conflicting evidence on the cause of the herniated disc. (See Conclusions of Law 1). Under these circumstances, the respondents’ reliance on Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) Berumen v. Arapahoe County, W.C. No. 4-114-314 (December 15, 2003) Hinojos v. Excel Corporation, W.C. No. 4-503-685 (January 15, 2003), is misplaced. Unlike the facts presented here, the records in those cases contained some evidence in support of a particular proposition but the ALJs erroneously found there was “no evidence.” Consequently, this claim is legally distinguishable.
The ALJ resolved the conflict by crediting the testimony of Dr. Brethouwer, Dr. Dwyer and the claimant. (See Findings of Fact 15, 16) Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (by not citing testimony ALJ implicitly rejected it) Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ’s credibility determinations adequately informs reviewing court how ALJ resolved conflicts in the evidence). Contrary to the respondents’ further contention the ALJ was not required to articulate the basis for his credibility determinations. See Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987).
We did not conclude otherwise in Berumen v. Arapahoe County, supra.
Rather, in Berumen we held that if an ALJ resolves factual conflicts based on credibility determinations the order must articulate that credibility was the basis for the resolution.
The ALJ’s credibility determinations from conflicting evidence are binding 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). Based upon this record we cannot say as a matter of law the testimony of the claimant and the medical experts was overwhelmingly rebutted by the testimony of the respondents’ witnesses. Consequently, the respondents have failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated, February 4, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Adolpho Valdera, Montrose, CO, Jason Barnes, Checker Auto Parts, Montrose, CO, Amy Nelson, Royal SunAlliance, Englewood, CO, David B. Mueller, Esq., Grand Junction, CO, for Claimant.
Emily C. Hvizdos, Esq. and T. Paul Krueger, II, Esq., Colorado Springs, CO, for Respondents.