W.C. No. 4-735-693.Industrial Claim Appeals Office.
February 25, 2010.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 19, 2009, that denied and dismissed the claim for benefits under the Workers’ Compensation Act. We affirm.
The claimant worked for the employer as a preschool teacher. The claimant contended she injured her lower back lifting a table on Friday, June 15, 2007. The claimant was terminated for abandoning her classroom of children on July 10, 2007. The ALJ found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. The claimant brings this appeal.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her back injury 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). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). 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 consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
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I.
The claimant contends that substantial portions of the recording of the claimant’s testimony at the hearing were inaudible, requiring a remand to complete the record for review. The claimant argues that the ALJ found that the claimant’s testimony was not credible and this determination was an important factor in the ALJ’s decision. The claimant has not with any specificity pointed to inaudible portions of the transcript that would have an impact on determining the claimant’s credibility. Nevertheless, the claimant contends that the transcript of her testimony at the hearing held on January 29, 2009 is problematic because some of her testimony was inaudible.
The transcript of the testimony taken at the evidentiary deposition does have inaudible sections of testimony. However, in our opinion the audible portion of the hearing transcript sufficiently supports the ALJ’s order. Moreover, we note that the cross-examination of the claimant was conducted in an evidentiary deposition on February 27, 2009. The credibility determinations of the ALJ in large part relate to discrepancies shown in cross-examination during the evidentiary deposition.
We have reviewed the transcripts of both hearing and the evidentiary deposition and on the issue of the claimant’s credibility the ALJ made the following findings of fact, which are supported by the record. The claimant attempted to blame her failure to report the claimed injury promptly to her supervisor on the fact that the supervisor was away from the school. Tr.(1/28/2009) at 14; Tr. (2/27/2009) at 15. However, the supervisor was always available to employees by cell phone and the claimant eventually reported the injury over the phone. Sherman Depo. at 15-16. The claimant’s testimony explaining her failure to report the injury for several days was unreliable and lacking in credibility. The claimant was unable to credibly establish when she reported the table lifting incident to her supervisor. Tr. (2/27/2009) at 17-18. The supervisor credibly testified that on Wednesday, June 20, 2007 the claimant telephoned her at home and advised that she had injured herself on June 15. Sherman Depo. at 15. The supervisor recommended a chiropractic group or, depending on her level of pain, to go to the emergency room. Tr. (2/27/2009) at 22-24. The claimant instead chose to go to Advantage Physical Therapy. Tr.(1/28/2009) at 15; Tr. (2/27/2009) at 22. The claimant’s answers to many questions established that she could not recall the facts. The claimant’s testimony was replete with inconsistencies, such as her testimony attempting to explain the facts surround the table lifting incident On June 20, 2007, the claimant reported to her physical therapist at Advantage Physical Therapy that she and one other teacher were completely responsible for setting up for the Father’s Day luncheon. Exhibit V at 133. This report was inconsistent with the claimant’s testimony at the hearing when she said that she had to set up the furniture for the luncheon by herself. Tr.(1/28/2009) at 10; Tr. (2/27/2009) at 10,
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12. When asked on cross-examination the name of the other teacher she mentioned to the physical therapist, she answered that she did not know. Tr. (2/27/2009) at 12.
The claimant prepared a written response to a corrective plan prepared by her supervisor. Tr.(1/28/2009) at 14; Tr. (2/27/2009) at 18-20. The claimant acknowledged in her testimony that she had prepared the handwritten statement, but was unable to recall the details of the statement or the date upon which she actually submitted the statement to her supervisor. Tr.(1/28/2009) at 14.
The claimant was off work on vacation during the entire week of June 25th through 29th, 2007. Tr.(1/28/2009) at 24; Tr. (2/27/2009) at 29. The claimant arranged this time off to help move her grandmother. Tr.(1/28/2009) at 24. While the claimant suggested in testimony that she had not personally moved any of her grandmother’s belongings, she reported to the physical therapist that her back held up fairly well during the trip to Ohio to move her grandmother. Exhibit V at 131; Tr.(1/28/2009) at 25; Tr. (2/27/2009) at 30-31.
Following the trip to Ohio the claimant returned to work, but never suggested to her supervisor or anyone else at the employer that she was unable to perform her job because of pain. Tr. (2/27/2009) at 31. The claimant testified that she feared her supervisor would fire her if she reported that she was unable to perform her job. Tr. (2/27/2009) at 18, 31. However this testimony was unreliable and inconsistent with what the claimant wrote in her June 21st statements, indicating she was nearly pain-free during the prior week when she was performing her regular work. Exhibit AA at 209. The claimant’s testimony was also inconsistent with what she reported to her physical therapist on July 10, 2007. Exhibit V at 7.
The claimant testified that she had requested time off on Tuesday afternoons when a co-worker, Ms. Watts, was available to cover her classroom. Tr.(1/28/2009) 25; Tr. (2/27/2009) at 33; Sherman Depo. at 42. On Friday July 6, 2007, Ms. Pawelk informed the claimant that she should reschedule her afternoon off on the following Tuesday, July 10, 2007, because Ms. Watts would not be available to cover her classroom. Tr. (2/27/2009) at 33. On July 9th, the supervisor reiterated to the claimant that she could not take off July 10, 2007 because there was no coverage for her classroom. Sherman Depo. at 30. The claimant was unable to remember her conversations with either Ms. Pawelk or Ms. Watts regarding taking off July 10, 2007. Tr. (2/27/2009) at 33.
The claimant did recall the conversation with the supervisor and testified that she tried to reschedule doctors’ appointments set for Tuesday later on Wednesday. Tr.(1/28/2009) at 25; Tr. (2/27/2009) at 33. The claimant testified that she was unable to move the appointments and informed her supervisor. Tr.(1/28/2009) at 26-27. In
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contrast the supervisor testified that the claimant never told her on July 9th that she was unable to reschedule two medical appointments, but only that she had a “well check” appointment required by the employer and the supervisor gave the claimant permission to postpone the wellness examination. Tr. (2/27/2009) at 34-35. The supervisor understood from her conversation with the claimant on Monday that the claimant had agreed to switch her afternoon off from Tuesday to Wednesday when the supervisor was available to cover her class. Sherman Depo. at 17-20, 30.
On Tuesday the supervisor was shocked when the claimant told her that she was leaving. Tr.(1/28/2009) at 26. Because the claimant left her children unattended the preschool was in violation of state law and the supervisor was required to self-report the violation and called the parents to come and pick up their children. Sherman Depo. at 34-36. The supervisor terminated the claimant based upon the incidents leading up to the June 21, 2007 letter and the July 10th incident. Sherman Depo. at 38.
The claimant testified that she was entitled to take off the afternoon of July 10th irrespective of scheduling problems, which were the supervisor’s responsibility. Tr. (2/27/2009) at 28. The claimant contends that she could not reasonably have understood that abandoning her class of children would result in her termination because the employee handbook allows employees to notify the supervisor and leaves it to her to arrange for a substitute if another staff member was unavailable. Tr. (2/27/2009) at 28. The claimant testified that she left the children sitting in the classroom, reading books and that she opened some doors between her classroom and another classroom where the children have lunch. Tr. (2/27/2009) at 39. The claimant stated that there were two teachers in the other room having lunch with another class. Tr. (2/27/2009) at 18-19, 40. The claimant stated that she made eye contact with both teachers and interpreted their nodding to indicate that they would watch the children. Tr. (2/27/2009) at 41. The claimant could not recall the names of the two teachers, nor did she verbally tell them that she was leaving, but instead left the preschool building. Tr. (2/27/2009) at 44.
Section 8-43-213(1), C.R.S. 2009, provides that all testimony taken at hearings “shall either be taken verbatim by a hearing reporter or shall be electronically recorded by the division.” The hearing in this case was electronically recorded, and we note the transcript for the January 28, 2009 hearing reveals several inaudible statements. However, the absence of a complete transcript, does not mandate the reversal of an administrative order Shafron v. Executive Director Department of Revenue, 190 P.3d 812, 813 (Colo. App. 2008). The court of appeals has stated, “[e]ven if there are some omissions in the transcript, if the relevant portions of the transcript are sufficient to allow review of the dispositive issues on appeal, the record is not insufficient to permit review.” Goodwill Industries of Colorado Springs v. Industrial Claim Appeals Office, 862 P.2d 1042, 1046 (Colo. App. 1993);
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Whatley v. Apple One Employment Services, W.C. Nos. 4-625-784 4-625-60 (August 23, 2005).
In our view, the relevant portions of the transcript of the January 28, 2009 hearing are sufficient to allow review of the issue of the claimant’s credibility, particularly in light of the evidentiary deposition of the claimant, which contains the bulk of the cross-examination of the claimant. Therefore, there is no need to remand the matter to complete the record for review.
Further, 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, extreme circumstances do not exist here. The claimant’s arguments notwithstanding, there is substantial evidence in the record to support the ALJ’s finding that the claimant’s testimony was not credible.
II.
The claimant next contends that the ALJ’s findings concerning the claimant’s injury are not supported by substantial evidence in the record. The claimant notes that the ALJ found that she was not a credible witness yet the ALJ did credit the claimant’s report to Dr. Isser that the table she lifted weighed 15 pounds. The claimant therefore contends that ALJ’s conclusion that the table only weighed 15 pounds is therefore not supported by substantial evidence. We disagree.
Whereas it is true that the ALJ found the claimant was not credible we do not agree that the ALJ was compelled to reject every statement made by the claimant. The ALJ was free to credit those portions he found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (to the extent testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony). In our view, the ALJ was at liberty to reject most of the claimant’s testimony, but accept her testimony that the table in question only weighed 15 pounds.
Moreover, as noted above the ALJ made detailed findings of fact based on the record that support his determination that the claimant had failed to establish that she suffered a compensable injury. Consequently, that determination must be upheld on review Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002).
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III.
The claimant next contends that the ALJ’s findings of fact do not support the conclusion that the claimant did not sustain a compensable injury. The claimant argues that while the ALJ credited the testimony of Dr. Johnson and Dr. Raschbacher, neither physician opined the claimant did not sustain an injury on June 15, 2007. The claimant argues that while the physicians opined that the claimant’s disc herniation was not caused by the claimed accident this does not indicate that the claimant did not sustain any injury on June 15, 2007. The claimant contends the opinions of Dr. Johnson and Dr. Raschbacher support her contention that the June 15, 2007 claimed accident could cause a SI joint strain. Therefore, the claimant contends that the decision of the ALJ regarding the compensability of this claim should be reversed and the claim found compensable. We disagree.
Here, the ALJ did rely in some part on Dr. Johnson’s opinion, supported by Dr. Raschbacher’s opinion, that it was very unlikely that the claimant’s mechanism of injury caused the central disc herniation. In our view the ALJ could rely in part on these medical opinions to discount the claimed accident as affecting the claimant’s back. To the extent that the opinions of Dr. Johnson and Dr. Raschbacher could support a more limited claim of a strain to the claimant’s back the ALJ was obviously not persuaded to do so. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000) (evidence not cited is implicitly rejected as unpersuasive.) Further the ALJ was free to rely on those portions of the physician’s opinions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, supra.
Moreover, we note that the ALJ relied on the medical reports and opinions of Dr. Johnson and Dr. Raschbacher in a variety of ways in coming to his conclusion that that the claim was not compensable. The ALJ found that prior to Dr. Johnson’s examination on July 11, the claimant completed a two-page medical history in which she denied any history of lower back problems. The claimant, when asked by Dr. Johnson about prior injury or problems with her back, denied any prior problems. The ALJ concluded that the claimant had misrepresented her history of back treatment to Dr. Johnson. The ALJ made other findings regarding the claimant’s misrepresentations to Dr. Johnson.
The ALJ found that claimant had failed to offer any credible or persuasive explanation of her failure to attened a scheduled independent medical examination with Dr. Raschbacher. Therefore, the claimant’s conduct leading to such delay was found by the ALJ to be inconsistent with her implied desire to obtain medial treatment to resolve her symptoms. The ALJ found that the claimant requested temporary disability benefits yet reported to Dr. Johnson that her lower back pain had not prevented her from
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performing her work at the employer. Exhibit S at 114. The ALJ credited the supervisor’s testimony that the employer could have accommodated Dr. Johnson’s ten-pound lifting restriction.
In our view, ALJ’s findings of fact support his conclusion that the claimant did not sustain a compensable injury. Therefore, we are not persuaded to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 19, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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CARMEN MESICH, 830 EMPIRE STREET, SILVERTON, CO, (Claimant).
THE RIVERHOUSE CHILDREN’S CENTER, INC., Attn: MS LINDSAY SHERMAN, 495 ANIMAS VIEW DRIVE, DURANGO, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., 7501 E LOWRY BLVD, DENVER, CO, (Insurer).
DAWES, HARRISS BLOODSWORTH, PC, Attn: ELLIOT L BLOODSWORTH, ESQ., 572 E THIRD AVENUE, DURANGO, CO, (For Claimant).
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: CONNIE HULST, ESQ., 1401 SEVENTEENTH STREET, SUITE 900, DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: SCOTT NEILSON, 7501 E LOWRY BLVD, DENVER, CO, (Other Party).
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