W.C. No. 4-772-111.Industrial Claim Appeals Office.
August 13, 2009.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) dated April 28, 2009, that found the claimant sustained compensable hernias and awarded benefits. We affirm.
On July 2, 2007 the claimant attended a physical examination by his primary care physician and there was no diagnosis of hernias. On September 16, 2008, while working for the employer, the claimant engaged in heavy lifting in the form of transporting doors. On September 22, 2008, during another physical examination with his physician, the claimant was diagnosed with multiple hernias. The claimant testified that he did not know what caused his hernias or when they developed. The respondent’s medical expert confirmed the claimant had multiple hernias and recommended surgical intervention. The ALJ determined that the medical evidence established that it was more reasonably probable than not that the claimant’s heavy lifting at work aggravated his asymptomatic hernias and caused disabling medical restrictions. The ALJ concluded that the claimant had proven, by a preponderance of the evidence that he sustained a compensable aggravation of his preexisting hernias on September 16, 2008 while lifting doors at work.
The respondent appeals first contending that the ALJ did not apply the appropriate legal standard. The respondent argues that the claimant did not know what caused his hernias or when they developed, but that the ALJ awarded benefits based on his determination that the respondent had not demonstrated any other reasonable explanation for the development of the claimant’s hernias. We are not persuaded, as argued by the respondent, that the ALJ placed the burden on the respondent to establish some other cause for the claimant’s hernias.
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We recognize that to prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979).
Here, as pointed out by the respondent the ALJ commented at the conclusion of the hearing that there was no other reasonable explanation for the aggravation of the hernias than the claimant’s lifting the doors at work. Tr. (4/17/2009) at 20. However, the ALJ additionally noted that the claimant had the burden by a preponderance of the evidence of establishing the relatedness of his hernias. Tr. (4/17/2009) at 20. The ALJ in his written order noted that the injured worker has the burden of proof, by a preponderance of the evidence, of establishing the compensability of an industrial injury and entitlement to benefits. Conclusions of Law § b at 4. We are satisfied that the ALJ was cognizant of the proper burden of proof.
As we read the ALJ’s order, from an examination of the totality of the circumstances including lay and medical evidence he determined that the claimant had established that the claimant’s heavy lifting at work aggravated his asymptomatic hernias. In our reading of the ALJ’s order the ALJ did not accept respondent’s argument that the claimant’s hernias amounted to an unexplained, idiopathic event. Therefore, in our view the ALJ did not place the burden of proof on the respondent, but rather found that the claimant had carried his burden. This leads us to the respondent’s next argument that the ALJ’s findings of fact were not supported by substantial evidence.
When the dispute is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). Here, the respondent argues that because the ALJ found that claimant candidly testified that he did not know what caused his hernias or when they developed, the claim must be denied. In our view, the claimant’s testimony does not as a matter of law compel a denial of the claim.
Here the ALJ relied on other parts of the record. The ALJ found with record support that no diagnosis of a hernia was made in a physical examination conducted before the lifting incident Tr. (2/19/2009) at 16-17. On September 16, 2008 the claimant
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engaged in heavy lifting of doors at work. Tr. (2/19/2009) at 18. On September 22, 2008 during a physician’s examination the claimant’s primary care physician diagnosed the claimant with multiple hernias. Tr. (2/19/2009) at 19; Exhibit B. The respondent’s expert confirmed the presence of hernias and stated that assuming the lifting was done as the claimant stated, then he was comfortable stating within a reasonable degree of medical probability that the hernias were in fact related to the September 16, 2008 lifting incident. Exhibit 9 at 3. In our view, the above constitutes substantial evidence from which a plausible inference could be drawn that the claim was compensable.
We realize that the respondent’s expert stated that he was unable to elicit a specific date or activity from the claimant for the development of the hernias and that because the claimant was asymptomatic it was unknown what caused the hernias. However, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 28, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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KENNETH MATTSON, DENVER, CO, (Claimant).
CLP, INC, C/O: TRUE BLUE, FORMERLY LABOR READY, ENGLEWOOD, CO, (Employer).
HUNTER W HOLLEY ESQ, LAKEWOOD, CO, (For Claimant).
HOLLY M BARRETT ESQ, C/O: CLIFTON MUELLER BOVARNICK PC, DENVER, CO, (For Respondents).
ESIS/ ACE GROUP, TAMPA, FL, (Other Party).
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