W.C. No. 4-505-129Industrial Claim Appeals Office.
August 26, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (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 back injury on Friday, June 8, 2001, caused by the heavy lifting required of his employment as a house framer. It is undisputed the claimant suffered prior back injury in 1996, which was surgically treated.
The claimant testified that after he and his co-workers finished lifting a heavy, framed wall on a residential construction project, he felt dizzy, lightheaded and experienced back pain. He stated he finished work that day but when he got home he took a hot bath and rested over the weekend. He testified he contined to have back pain on Monday, June 11, but went to work and completed his shift. He stated he also went to work on Tuesday, June 12, and could hardly sit down by the end of the shift. Then, on the morning of Wednesday, June 13, he allegedly awoke with severe back pain and sought emergency treatment. The typed emergency room report contains a history of back pain for “at least the last year,” and pain radiating down his right leg which occurs approximately every 6 months.
The owner of Phillips Construction and the claimant’s foreman, who worked with the claimant on June 8, testified that the claimant did not report any back injury and showed no signs of back pain on June 8, June 11 or June 12. They added that they had no knowledge of the alleged injury until after the claimant sought emergency treatment.
Crediting the testimony of the owner and foreman, the ALJ found the claimant failed to prove his back pain was caused by a work-related aggravation of his pre-existing condition from the 1996 injury. The ALJ also relied on evidence the claimant did not report any work- related injury to the emergency room on June 13 and worked three full days of regular employment after the alleged injury without any outward signs of discomfort. Therefore, the ALJ determined the claimant failed to sustain his burden to prove a causal connection between the employment and the condition for which he sought medical treatment.
Relying on his testimony, the claimant contends the evidence reflects progressive symptoms of back pain from heavy lifting at work which culminated in an emergency room visit on June 13. Consequently, the claimant contends the ALJ erred in failing to find the back pain was work-related. We disagree.
To prove a compensable injury the claimant was required to prove his need for medical treatment 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. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions. Section 8-41-301(1)(b), C.R.S. 2001.
The question of whether the claimant met his burden of proof is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). We must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001.
Where the evidence is subject to conflicting inferences, we may not interfere with the ALJ’s determination of the inferences to be drawn Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Further, we may not set aside an ALJ’s credibility determination 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).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
The emergency room record, and the claimant’s own testimony concerning his work on June 8, 11, and 12 contain substantial evidence consistent with the testimony of the owner and foreman. Accordingly, we cannot say the ALJ erred in crediting the testimony of the owner and foreman.
Furthermore, the ALJ’s finding the claimant failed to prove his back pain was work- related in a plausible inference from the evidence he found persuasive, and this inference is fatal to the claim for compensation. Section 8-41-301(1)(b). Therefore, the claimant’s argument does not establish grounds which afford us a basis to interfere with the ALJ’s order denying benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 14, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2001. 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 August 26, 2002 to the following parties:
Jerry White, 601 Pear St., Pueblo, CO 81005
Phillips Construction, 29037 Everett Rd., Pueblo, CO 81006-9643
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Derek T. Frickey, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
BY: A. Hurtado