W.C. No. 4-773-710.Industrial Claim Appeals Office.
September 23, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated May 6, 2009, that denied and dismissed the claimant’s claim for compensation. We affirm.
The claimant worked as a bus driver for the employer and testified that on September 16, 2008 she suffered an industrial injury when she tried to stop a van from rolling while one of the passengers was getting off. The claimant testified that the bus jumped out of park and moved causing her to have to stop it with her hands and thereby causing her injury. The ALJ found that the claimant’s testimony was not credible. The ALJ found that the claimant’s testimony that she sustained injury to both of her upper extremities and shoulders in the claimed accident was rebutted by her non-physiologic medical examination. The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that she sustained a compensable injury on September 16, 2008 while employed by the employer.
I.
On appeal, the claimant first argues that the ALJ committed reversible error in his failure to discuss certain evidence and instead relied on the testimony of a lead driver for the employer. We are not persuaded that the ALJ committed reversible error.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her claimed injuries to her wrists, arms and shoulders 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.
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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. On review the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). Under this standard, we are required to defer to the ALJ’s resolution of conflicts in the evidence, 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 argues that the respondents did an investigation of the accident which included interviews with passengers who were on the vehicle at the time of the accident and confirmed that the bus rolled. The claimant contends that this evidence was not addressed by the ALJ and the ALJ instead erred in relying on the testimony of a lead driver for the employer.
We first note that the absences of a discussion of the investigation report and interviews do not compel a conclusion that the ALJ committed reversible error. To the contrary, in resolving the issue of whether the claimant had proved a compensable injury the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). The ALJ is only required to enter findings on the evidence he found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Consequently, the absence of specific findings of fact on the evidence the claimant relies upon in support of her claim does not compel a finding the ALJ failed to consider the evidence. Cf Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo. App. 1995); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (presumption exists that ALJ considered and gave due weight to relevant statutory factors).
Here, the claimant had testified that after she initially stopped the bus, she was holding the bus still with both hands against the door and called for help. The ALJ with record support made the following findings of fact. When the lead driver arrived at the scene, the claimant’s arms were not in front of her holding the door of the bus to keep it from moving. Tr. at 80-81. The alarm was not sounding on the bus as it usually would if it was moving backward. Tr. at 82. When the lead driver checked the bus, he found that the bus was actually in park despite the statement of the claimant that the bus had slipped out of park. Tr. at 81. The lead driver also found that the parking brake was on. Tr. at
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81. The claimant’s supervisor checked out the bus on September 16, 2008. Tr. at 108-09. The supervisor tried to duplicate the equipment failure described by the claimant a number of times but could not do so. Tr. at 109. The ALJ found that the testimony of the lead driver and the supervisor were more credible and persuasive than the claimant’s testimony. In our view the above is substantial evidence in the record supporting the ALJ conclusion that the bus did not move or roll on September 16, 2008 as alleged by the claimant.
The claimant further argues that the evidence contained in the investigative report, if properly reviewed clearly contradicts the testimony of the lead driver and would lead to a different conclusion. Here, the lead driver was questioned regarding the investigative report and admitted that there was bit of play in the gearshift Tr. at 84-87. The ALJ specifically found that although the lead driver did find the usual “play” in the gearshift within the park setting the bus was nevertheless in park. Finding of Fact, ¶ 7 at 3. The supervisor also testified that some of the buses have a little play in park setting, but they do not jump out of park. Tr. at 114. In addition, we acknowledge as argued by the claimant that the investigative report contains an interview with a passenger that states the bus did roll. Exhibit 6 at 23. However, in our view the evidence contained in the investigative report does not overwhelm the testimony of both the supervisor and the lead driver.
As noted by the claimant we may not set aside a credibility finding 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). In our view, there is ample support for the ALJ’s credibility determinations. Therefore, extreme circumstances are not present which would compel the conclusion that the ALJ’s credibility determinations must be set aside.
II.
The claimant next argues that the ALJ committed reversible error in his weighing of the testimony of Dr. Sacha. Dr. Sacha opined that he did not believe the claimant was injured. The claimant concedes that the ALJ was entitled to rely on this medical opinion regarding whether the claimant had need for further medical treatment. However, the claimant argues that it was error for the ALJ to rely on the opinion of Dr. Sacha that the accident did not take place. We disagree.
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The ALJ made the following findings of fact with record support. Dr. Sacha is a physician who participates in teaching the Division of Workers’ Compensation Level II accreditation course for physicians, including the section on assessment of causality. Tr. at 89. Dr. Sacha testified that the claimant did not sustain an injury on September 16, 2008 even if it were found that the bus rolled or moved on that date and that the claimant braced or pushed against the bus with her hands. Tr. at 91-92; 97-99; 100. Dr. Sacha testified that such an iso-kinetic movement would not cause either carpal tunnel syndrome or a bilateral upper extremity injury as complained of by the clamant. Tr. at 95. Dr. Sacha found no objective pathology to explain the claimant’s symptoms and noted her to have a non-physiologic examination. Tr. at 99-100. In our view, a reasonable inference can be drawn from the evidence that the accident did not happen as alleged by the claimant.
Moreover, in our view, this testimony constitutes substantial evidence supporting the ALJ’s determination that the claimant had failed to prove that she sustained a compensable injury defined by law as one requiring medical treatment or causing a disability. As the ALJ noted the term “injury” has been construed to mean a compensable injury. City of Colorado Springs v. Industrial Claim Appeals Office 89 P.3d 504 (Colo. App. 2004); Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App. 1991).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 6, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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BERNADINE RUIZ, DENVER, CO, (Claimant).
TOTAL LONG TERM CARE, INC., LAKEWOOD, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
BENDINELLI LAW OFFICE, PC, Attn: JERRY SUMNER, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: KATHERINE H. R. MACKEY, ESQ., DENVER, CO, (For Respondents).
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