W.C. Nos. 4-625-784, 4-625-603.Industrial Claim Appeals Office.
August 23, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ), dated February 22, 2005, denying and dismissing the claim for compensation. The claimant argues that the ALJ’s findings of fact are not supported by substantial evidence, that the ALJ erred in failing to conclude that a compensable injury occurred regardless of which version of the events is credited, and that her constitutional right to due process was violated by the poor quality of the hearing transcript. We affirm.
The ALJ found that the claimant was employed to perform assembly work at the employer’s manufacturing facility when, on August 27, 2004, she was at the first aid station to attend to a cut on her finger. The claimant testified that a forklift in the vicinity backed up and struck her on the right side, injuring her back and hip. However, the ALJ expressly rejected the claimant’s testimony as not credible or persuasive and, conversely, credited the testimony of several witnesses for the respondents who testified that the forklift did not strike the claimant. Accordingly, the ALJ found that the claimant had not been struck by the forklift, which was not moving at the time of the “incident,” and that the claimant did not sustain an injury at that time.
On appeal the claimant first contends that the ALJ erred in failing to resolve a “material issue of fact” concerning the precise mechanism of the injury. The claimant argues that even if the forklift did not actually hit her the ALJ should have entered findings concerning whether she was injured jumping out of its way in order to successfully avoid being struck. We perceive no error.
Initially, we question whether this unresolved “issue of fact” the claimant complains of was genuinely raised by her testimony. It is true that the claimant’s attorney noted in her opening statement that whether the claimant was really struck by the forklift “is not the most important thing.” Tr. 8. Rather, she argued that the question was whether the claimant was injured by being struck, or by jumping out of the way, or by some other mechanism. Tr. 8. And, claimant’s counsel reiterated the theory in her post-hearing position statement that it was “irrelevant” whether the forklift actually hit the claimant; rather, the real question was whether the claimant was injured in that or some other manner.
However, despite her attorney’s arguments concerning alternative ways in which she was injured, in her actual testimony the claimant was not ambivalent. She testified that the forklift “hit me and it jerked me so that I twisted.” Tr. 10. She then related to a bystander who inquired about what happened that “the forklift hit me,” tr. 10, and reported to the employer in writing that “the forklift hit me on my right side.” Tr. 14. With the exception of her attorney’s legal argument, we are unable to locate anything in the record suggesting that the claimant was equivocal about the fact of the collision with the forklift or that the injury occurred in any other way. Hence, it is doubtful that the factual record created at the hearing presents this “issue of fact” that the claimant argues should have been expressly resolved by the ALJ.
In any event, we perceive no error in the ALJ’s order in this respect. As noted, the claimant’s attorney argued this theory in both her opening statement and in her position statement. As we read the ALJ’s order he considered the argument when he noted in his findings that the claimant “has consistently asserted that she was `hit’ by the forklift, and that the forklift was moving at the time of the incident.” (Finding of Fact No. 5). Implicit in this finding is the rejection of the claimant’s alternative theory that she was injured by some means other than being struck by the forklift. This finding, in conjunction with the further finding that the claimant was not injured in a compensable accident sufficiently addresses claimant’s alternative theories of the injury. The ALJ is not required to discuss in detail theories that he rejects as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966).
The claimant also argues that the ALJ’s findings of fact are inconsistent and that, as a result of the inherent conflicts in the testimony, his order is not supported by substantial evidence. We disagree.
The claimant had the burden to prove that her 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. 2004. 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. 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995).
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807
(Colo.App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We have no difficulty ascertaining the ALJ’s dispositive factual findings, which fully support his conclusion that the claimant failed to prove a compensable injury. As it was his prerogative to do, the ALJ resolved the conflicting evidence and rejected the testimony of the claimant as neither credible nor persuasive. He also expressly credited the testimony of Shirley Moreno, Anthony Longoria, Maria Aguilar, and Juanita Mares. The testimony of these witnesses supports the ALJ’s dispositive findings that the forklift did not strike the claimant, that it was not moving at the time of the “incident,” and that the claimant did not sustain an injury. Longoria testified that the forklift did not “mak[e] contact” with the claimant at any time, and that “there was no accident.” Tr. 20, 21. Moreno testified that the forklift was not moving during the relevant time period and that she did not see it strike the claimant at any time. Tr. 28, 34, 36-37. And Aguilar testified that she knew “for sure” that the forklift did not hit the claimant, and that she was positive of that fact because “the forklift was not on.” Tr. 41. This testimony, in conjunction with the ALJ’s rejection of the claimant’s testimony as not credible, provides ample support for the ALJ’s factual findings. The existence in the record of inconsistencies or evidence from which the ALJ could have drawn contrary inferences does not provide a basis for setting aside his order. Cordova v. Industrial Claim Appeals Office, supra.
The claimant also contends that the poor quality of the transcript renders appellate review impossible and deprives her of the constitutional right to due process. We disagree.
The hearing in this case was electronically recorded, and it is true that many portions of the transcript are designated as “inaudible.” However, the court of appeals has stated that “[e]ven if there are some omissions in the transcript, if the relevant portions of the transcript are sufficient to allow review of the dispositive issues on appeal, the record is not insufficient to permit review.” Goodwill Industries of Colorado Springs v. Industrial Claim Appeals Office, 862 P.2d 1042, 1046
(Colo.App. 1993). Here, the inaudible portions of the record “do not obscure the clear import of evidence presented,” and the transcript is sufficient for our review. Barone v. State of Colorado Department of Revenue, 736 P.2d 432, 434 (Colo.App. 1987). Our review of the factual record is deferential and, even if the inaudible portions of the record obscure testimony that would support inferences contrary to those drawn by the ALJ, that does not render our review impossible. It is not our function on appeal to reweigh the factual record or reconsider the ALJ’s resolution of conflicts, and in this case the transcript is sufficient to permit our review.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 22, 2005 is affirmed.
Shawna Whatley, Loveland, CO, Apple One Employment Services, Loveland, CO, Chanel Contreras, The Howroyd Group, Glendale, CA, Evelyn Radmacher, ACE American Insurance Company, Portland, OR, Tracy Stewart, Esq., Fort Collins, CO, (For Claimant).
Erica A. Weber, Esq., Denver, CO, (For Respondents).