W.C. No. 4-788-577.Industrial Claim Appeals Office.
February 26, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 20, 2009, that denied and dismissed the request for workers’ compensation benefits. We affirm.
The claimant contended that he injured his lower back while moving a concrete block for the employer on approximately June 25, 2008. The ALJ found that the claimant failed to demonstrate that he suffered a compensable lower back injury during the course and scope of his employment with the employer. The ALJ found the claimant’s testimony to be internally inconsistent and in conflict with the medical evidence. The claimant brings this appeal.
To establish a compensable injury, the claimant had the burden to prove by a preponderance of evidence that 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). The question 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. 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).
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The claimant contends the ALJ erred by finding that the claimant did not suffer a compensable low back injury and in dismissing his claim for benefits. The ALJ made the following findings with record support. The claimant asserted that he experienced lower back pain on approximately June 25, 2008 while moving a concrete block. Tr. at 13. The employer’s manager observed the claimant limping and having difficulty standing up straight prior to June 25, 2008. Tr. at 35-36. The manager acknowledged that the claimant mentioned back pain in June 2008, but stated that when he offered the claimant medical treatment the claimant declined because he had suffered from back pain for half his life. Tr. at 36, 38-39. The claimant went to his personal insurer, Kaiser Permanente, on June 28, 2008 and reported three days of gradually increasing lumbar pain “without specific trauma.” Exhibit B at 17. The claimant did not report the June 25, 2008 incident to his employer until March 19, 2009. Tr. 14, 24, 27-28, 39-40. The claimant was laid off on March 19, 2009. Tr. at 11. On the same date the employer laid off a total of 12 employees. Tr. at 40. The decision to lay-off multiple workers occurred for economic reasons prior to March 19, 2009. Tr. at 40-41.
In our view, the ALJ’s conclusion that the claimant’s testimony was internally inconsistent and conflicted with the medical evidence is supported by substantial evidence. Further the ALJ’s credibility determinations are binding except in extreme circumstances Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000).
We recognize that a compensable injury may be the result of an industrial aggravation of a preexisting condition as long as the aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). However, here the ALJ found that the claimant’s employment activities on June 25, 2008 did not aggravate, accelerate, or combine with any preexisting back problems to produce a need for medical treatment. This determination is supported by the record. The ALJ was persuaded in part by opinions of Dr. Burris. Dr. Burris opined that the claimant’s back condition was not caused by his employment for the employer. Exhibit A at 3. Dr. Burris noted several inconsistencies between the claimant’s testimony and the medical record. Exhibit A at 2. Dr. Burris also opined that the claimant reported to him that he only decided to pursue benefits through the workers’ compensation system after Kaiser advised him that treatment could be expensive and it would be better to proceed through the worker’s compensation system. Exhibit A at 2. The ALJ also noted testimony from the employer’s manager who remarked that the claimant had experienced back pain since he began employment in 2005 and that the claimant’s back pain had preceded his employment with the employer. Tr. at 37-39.
The claimant’s arguments notwithstanding, there is substantial evidence in the testimony of the respondents’ witnesses and the medical record to support the ALJ’s
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finding that the claimant failed to sustain his burden to prove a causal connection between his back condition and the employment. Consequently, the existence of other evidence that, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963) Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo. App. 1981) (expert medical evidence not dispositive of causation).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 20, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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EDUARDO HERNANDEZ, AURORA, CO, (Claimant).
RIO GRANDE BUILDING MATERIALS, CO, (Employer).
ZURICH INSURANCE, Attn: AMY FUNDERBURK, C/O: GALLAGHER BASSETT SERVICES, CO, (Insurer).
THE FRICKEY LAW FIRM, Attn: MARIA N DE LEON, ESQ., LAKEWOOD, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC J POLLART, ESQ., CO, (For Respondents).