W.C. No. 4-775-032.Industrial Claim Appeals Office.
March 4, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated August 20, 2009, that denied and dismissed the claimant’s claim for workers’ compensation. We affirm.
The claimant testified that she injured her left shoulder and right wrist pulling laundry from a chute in the ceiling while working for the employer. The claimant testified that this occurred during the evening of October 5, 2008. The ALJ found that the claimant had failed to establish by a preponderance of the evidence that she sustained injuries in the course and scope of her employment. The ALJ found that the claimant’s testimony was inconsistent with other evidence produced at the hearing. The claimant brings this appeal.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her injuries arose out of and in the course of her 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). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ .
Because the issue 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
Page 2
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).
The claimant contends that the ALJ erred in determining that the claimant’s testimony was not credible because the record does not support the majority of the ALJ’s findings in support of that conclusion. We are persuaded that the ALJ’s findings, contrary to the assertions of the claimant, are supported by substantial evidence in the record.
Here, the ALJ found that the claimant’s version of the events surrounding her claimed injury and disability lacked credibility. We note preliminarily that the credibility determinations made by an ALJ are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000).
The ALJ further found that the opinions of the claimant’s medical expert were unpersuasive. In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
The claimant first challenges the ALJ’s credibility finding involving her explanation of why she failed to report the injury on October 5, 2008. The claimant testified that no supervisor was working on that date. However, the ALJ found that in fact a supervisor was working on the date in question. Therefore, the ALJ did not believe the claimant’s explanation. Contrary to the claimant’s assertions, in our opinion, the record does support the ALJ’s determination. The claimant testified that she attempted to report her injury on October 5, 2008 but was unable to do so because there was no supervisor working that day. Tr. (4/7/2009) at 14-15. Ms. Madera testified that she was a supervisor of the housekeeping department and she was working the night of October 5, 2008 when the claimant claimed she was injured. Tr. (7/10/2009) at 7-9.
The claimant next contends the ALJ erred in finding that the claimant’s testimony was not credible, in part, because of her failure to report the injury until October 13, 2008. The claimant again contends that this finding is not supported in the record.
However, we observe that it is undisputed that the claimant did not report her claimed October 5, 2008 accident until October 13, 2008. As we read the ALJ’s order, she found it significant that the claimant first reported her claimed injury eight days after the alleged injury at a meeting with the Human Resources Manager when she was being terminated based upon the employer’s no call/no show policy. The claimant does not question these findings of fact, but instead contends the ALJ elected to pick and chose
Page 3
what portions of the claimant’s testimony was credible and what were not. However, the ALJ was free to credit those portions she found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The claimant next contends that the ALJ erred in finding that Dr. Healey’s opinion that the claimant’s conditions resulted from repetitive overhead work was not persuasive. Here, the ALJ found that Dr. Healey’s opinion relied heavily on the claimant’s subjective history, which the ALJ found lacked credibility. As noted above we find no basis upon which to interfere with the ALJ’s determination concerning the claimant’s credibility. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Therefore, in our view, Dr. Healey’s reliance on the claimant’s unreliable history constitutes substantial evidence supporting the ALJ’s credibility determination regarding the opinions of Dr. Healey.
In addition, there is the report from the emergency room on October 9, 2008 that did not show a history of the incident with the chute. Exhibit S. Further, there was evidence that MRI films taken of the claimant’s shoulder showed that the pathology was degenerative and chronic rather than acute. Exhibit R at 38. In addition, the claimant’s treating physician expressed concern that the case involved fraudulent misrepresentation for the purpose of obtaining workers’ compensation benefits. Exhibit R at 35. Again, this is substantial evidence supporting the ALJ’s decision to be unpersuaded by Dr. Healey’s opinions on causality.
The claimant next challenges the ALJ’s reliance upon the employer’s video in which she found that the claimant failed to demonstrate any pain behavior. The claimant argues the ALJ erred in determining that the video supported a conclusion that the claimant’s testimony was not credible. We disagree.
Here, the ALJ found that the employer’s video showed the claimant making use of her left arm without apparent discomfort on October 5, 2008. The claimant does not challenge this finding directly. In any event, in our opinion the video bears the interpretation made by the ALJ. Instead, the claimant argues that Dr. Healey suggested that it might take time for the claimant’s body to respond with inflammation and pain and therefore, presumably, reliance should not be placed on the video.
However, here the claimant testified that after taking laundry from the chute she felt a sharp pain in her left shoulder. Tr. (4/7/2009) at 13. In our view, the video of the claimant taken on the same day demonstrating that the claimant was in no apparent discomfort could support a determination that the claimant lacked credibility.
As noted above the report from the emergency room on October 9, 2008 did not contain a history from the claimant of the incident with the chute. Exhibit S. The
Page 4
claimant argues that the ALJ mistakenly placed importance on the emergency room report. The claimant argues that her treating physician stated, “anything is possible” when asked if the emergency room physician could have been told how she injured her shoulder and simply did not record it. Tr. (4/07/2009) at 93. However, we are not persuaded that the mere possibility that an error may have been made in the emergency room report compels the conclusion that the ALJ erred in relying on the information actually contained in the report.
The claimant next argues that the ALJ erred in finding that the claimant did not report how she injured her shoulder. The claimant apparently concedes that one of the witnesses testified that the claimant reported to him that she woke up on October 6, 2008 with pain in her left shoulder and did not know where or how she injured her shoulder. Tr. (7/10/2009) at 38-39. The claimant further concedes that another employer representative filled out an injury investigation report that the claimant signed, which indicated that the claimant simply woke up with pain in her left shoulder. Exhibit E; Tr. (7/10/2009) at 37-38. In any event, we find these determinations supported in the record. However, the claimant goes on to suggest that this testimony is suspect and lacks credibility. However, again it is the ALJ’s prerogative to evaluate the credibility of the witnesses and the probative value of the evidence.
The claimant next contends that the ALJ erred in finding that the claimant testified that Dr. Smith noticed a bump on her right wrist on October 22, 2008. The claimant contends the ALJ further erred in contrasting the claimant’s testimony with Dr. Smith’s reports, which state there was no deformity, ecchymosis or effusion of the claimant’s right wrist. Exhibit R at 32.
An examination of the transcript shows that the testimony of the claimant may be viewed as being that she only had a bump on October 13, 2008 and not necessarily that she still had the bump later when Dr. Smith examined her. Tr. (4/07/2009) at 27-28. However, even if the ALJ misinterpreted the claimant’s testimony the error was harmless and will be disregarded. See § 8-43-310 C.R.S. 2009; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo. App. 1988). The issue here was the contrast between the client’s complaints and the medical record. In our view, there was substantial evidence supporting the conclusion that although the claimant complained of a bump on her wrist it was not observed in Dr. Smith’s records when the claimant was examined a few days later. In our view, this brings the claimant’s credibility into issue.
The claimant generally challenges the reliability of Dr. Smith’s reports. The claimant concedes that Dr. Smith’s reports regarding the claimant’s statement that she took the rest of October 5, 2008 off was inconsistent with her testimony. However, the claimant argues that Dr. Smith’s reports were “riddled with errors.” This again is a fact
Page 5
issue to be resolved by the ALJ. We further note that the claimant, who now challenges the reports of Dr. Smith, actually offered those reports into evidence. Tr. (4/07/2009) at 4; Exhibit 2. This is inconsistent with what we understand her current position to be, that the reports must as a matter of law be disregarded. See Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (invited error doctrine precludes parties from taking positions inconsistent with those initially taken).
The claimant next argues that the ALJ was incorrect in determining that Dr. Healey’s opinions were unpersuasive. Dr. Healey opined that the claimant’s injuries were work related. Dr. Healey performed an independent medical examination at the claimant’s request. However, as noted above the ALJ determined that Dr. Healey’s opinions relied heavily on the claimant’s subjective history, which the ALJ found lacked credibility. In our view, the ALJ was free to determine that Dr. Healey’s opinions were unpersuasive. Moreover, we note the opinion of Dr. Bloch, the treating physician, was that the claimant’s shoulder injury was most likely pre-existing and not work related. Tr. (4/07/2009) at 87. The credibility to be assigned conflicting expert testimony is a matter within the discretion of the ALJ. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). In our opinion, the record is sufficient to support the ALJ’s determination regarding the persuasiveness of Dr. Healey’s opinions.
The claimant next argues that the vast majority of the findings made by the ALJ were not supported by the record. Therefore, the claimant contends that the ALJ’s denial of the requested benefits constituted an abuse of discretion. However, although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002).
The claimant’s arguments essentially request that we reweigh the evidence on review. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and we decline the claimant’s invitation to do so Arenas v. Industrial Claim Appeals Office, supra; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
Because we uphold the ALJ’s determination that the claim was not compensable it is unnecessary to address any issue involving whether the claimant was responsible for her termination. We have reviewed the claimant’s additional arguments and they do not alter our conclusions. We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2009 is affirmed.
Page 6
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
Page 7
IRMA MONTOYA, 975 LOWELL BLVD #3, DENVER, CO, 80204 (Claimant).
HEP-DENVER, LTD, Attn: KENNEDY AMBUNDO, DENVER, CO, (Employer).
FARMINGTON CASUALTY COMPANY, DENVER, CO, (Insurer).
THE LAW OFFICE OF MARK BRANDES, Attn: MARK BRANDES, ESQ., DENVER, CO, (For Claimant).
RAY LEGO ASSOCIATES, Attn: GREGORY W PLANK, ESQ./JONATHAN ROBBINS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
TRAVELERS INDEMNITY COMPANY, Attn: TAMMY WASHINGTON, DENVER, CO, (Other Party).
Page 1