W.C. No. 4-778-444.Industrial Claim Appeals Office.
October 2, 2009.
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FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated May 27, 2009 that determined that the claimant sustained a compensable injury and that ordered the respondents to pay medical benefits and temporary total disability benefits. We affirm.
A hearing was held on the issues of compensability, medical benefits and temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant was employed as a clerk, whose primary job duty was to process personnel files by labeling and date stamping them. Boxes containing approximately 45 files and weighing 30 pounds were delivered to the claimant, and she would then remove the files, process them, and return them to the box. In doing so she would typically lift the box of files from a stack of six boxes, place it on the floor, and then onto a table, where she would remove and process the files. Approximately twice a week she would retrieve a file from another room, where she would remove the box of files from a shelf, place it on the floor, locate the appropriate file, and then replace the box on the shelf. On November 18, 2008 the claimant worked a full day, processing ten to fifteen boxes of files, and then went home until 6:00 p.m., when she went to a restaurant for dinner. At the restaurant she sat in a bar chair and first noticed pain in her left shoulder and neck when she pulled the chair toward her. She took some pain medication that night, but was unable to sleep on account of the worsening pain. The next day the claimant was unable to lift the boxes of files because of the pain and she reported that she had an injury. The claimant was unable to finish working her regular shift and that evening telephoned the employer to
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report that she would not be in the following day because of the pain. On November 20, 2008 the claimant consulted her personal physician, who prescribed pain medication. On November 21st she obtained treatment from Dr. Danahey at Concentra, who diagnosed a cervical sprain, left upper back sprain and strain, and left shoulder sprain and strain. He prescribed physical therapy and chiropractic care, and placed the claimant on a “no activity work status.” On November 26th and December 1st Dr. Danahey confirmed that the claimant was unable to work. On January 5, 2009 the claimant returned to work in a modified position.
The ALJ also found that the claimant’s neck and shoulder conditions were the result of repetitive lifting on November 18, 2008, and he accordingly concluded that she sustained a compensable injury. Based upon his other factual findings and his weighing of the medical evidence, he concluded that the respondents were liable for temporary total disability benefits until January 5th, and for medical benefits.
The respondents appealed and argue that the ALJ erred in concluding that the claimant sustained a compensable injury. Specifically, the respondents argue that the ALJ was compelled by the evidence to find that the claimant’s injury occurred when she was in the restaurant on the evening of November 18th and pulled the chair out from the bar. However, we are not persuaded that the ALJ erred.
Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. 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
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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). We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993).
Here, contrary to the respondents’ argument, the ALJ’s factual findings are supported by substantial evidence. Essentially the respondents’ argument requests that we review the factual record and reweigh the evidence and testimony, eventually in order to reach factual inferences different from those drawn by the ALJ. This exceeds the scope of our review and would usurp the ALJ’s function as the fact finder. That the claimant’s injury was caused by her work duties is a reasonable inference from her testimony, which is summarized above, and from the medical record. Conversely, there is nothing in the factual record that would require a fact finder to reject all other possibilities and to find that the injury was not sustained at work, either because it occurred at the restaurant or in some other way. Here the evidence is susceptible to various inferences and does not compel the conclusion urged by the respondents. Under these circumstances we perceive no reversible error and therefore affirm the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 27, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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CHRISTINE BURRY, LAKEWOOD, CO, (Claimant).
ARPC SERVICE SOURCE, Attn: GRITA STAMPLEY, CO, (Employer).
THE HARTFORD INSURANCE GROUP, Attn: MS SUSAN BRADY, HOUSTON, TX, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: MATTHEW C O’BRIEN, ESQ., DENVER, CO, (For Claimant).
LAW OFFICES OF SCOTT TESSMER, Attn: SCOTT TESSMER, ESQ., ENGLEWOOD, CO, (For Respondents).
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