W.C. No. 4-772-332.Industrial Claim Appeals Office.
August 12, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated April 16, 2009, that denied and dismissed the claimant’s claim for benefits under the Workers’ Compensation Act of Colorado. We affirm.
The claimant worked for the employer as a plumber’s apprentice. The claimant asserted that he suffered a compensable injury in September 2008. The ALJ found that the claimant had objective MRI findings of an acute disc herniation at L5-S1 and stenosis. However, the ALJ found that the claimant had not established that these injuries occurred in the course and scope of his employment nor did he establish that he aggravated any preexisting condition in the course and scope of his employment. The claimant appeals contending that the ALJ’s finding that the claimant failed to prove that his low back injury was caused or aggravated by his employment is not supported by substantial evidence in the record.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his back 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). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ.
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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 ALJ, with record support, made the following findings of facts. The ALJ acknowledged that the claimant performed strenuous work activities. However, the ALJ found that he did not timely report to his supervisor that he had back pain despite the severity of the pain levels the claimant described. Tr. at 43, 56-57, 59-60. The claimant testified that he had asked his supervisor for additional help with unloading tub enclosures; however there was no credible or persuasive evidence that the claimant concurrently explained to his supervisor that he needed the help because of his back pain. Tr. at 30-31. The claimant testified that he did not decide to pursue a workers’ compensation claim until he learned that he had a serious injury. Tr. at 35-37.
The ALJ noted inconsistencies in the claimant’s testimony and information in the medical record. Dr. Paz credibly opined that the herniation seen on the MRI was acute and would not have been caused by repetitive or cumulative exposure to lifting. Tr. at 86-87. Dr. Paz opined that the herniation would have been sudden and caused immediate symptoms. Tr. at 83, 86. In contrast the claimant testified that his symptoms were gradual and worsened over a two week time period. Tr. at 80, 84. Dr. Paz opined that the cumulative exposure to lifting is inconsistent with an acute herniated disc. Tr. at 83-85. At the emergency room on September 23, 2008 the claimant reported that the onset of his low back pain “was two days ago.” Exhibit B at 13. Two days prior to September 23, 2008 was Sunday September 21, 2008. The claimant did not work on that Sunday. Tr. at 56. The claimant reported to the emergency room personnel on September 23, 2008 that he had a prior history of back injury. Exhibit B at 10. The claimant reported to the emergency room personnel on September 29, 2008 that his symptoms had worsened while he remained off work for the week and that he now had pain radiating into his upper right leg. Tr. 37; Exhibit C at 17. The claimant again noted his prior history of back problems and his history of back pain was characterized by the emergency room providers as “Chronic Back Pain.” Exhibit C at 21. The medical record also states, “No history of recent trauma. Occurred at home.” Exhibit C at 21. No mention of a work injury is contained in the emergency room report. Exhibit C.
The ALJ drew certain inferences from the record. The ALJ determined that if the claimant’s pain was as severe as he described, it follows that the claimant would have reported to his supervisor, when he called in sick on Tuesday, September 23, 2008, that he felt he had a work-related back injury. The claimant testified that his pain worsened
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over the weekend of September 20-21, 2008 although he also testified that he rested. Tr. at 37. The ALJ determined that this worsening is inconsistent with relative rest. In our view these are plausible inferences drawn from the record, which requires us to defer to the ALJ’s resolution Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
In the present case the claimant’s credibility was an important factor. The ALJ concluded that the claimant’s testimony lacked credibility. It is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We are not persuaded to interfere with the ALJ’s credibility determination.
The claimant argues that the acceptance of the opinion of Dr. Paz over a treating physician is irrational. The claimant argues that Dr. Paz was retained and paid only to perform an independent medical evaluation, and saw the claimant only one time. We are not persuaded that the ALJ was compelled to accept the opinions of a treating physician over the opinions of Dr. Paz.
The ALJ was not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility See Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987). Nevertheless, we note that Dr. Paz testified regarding the actual mechanism of injury in connection with the positive findings of the MRI. We further note here that the ALJ did not simply rely on Dr. Paz regarding the medical aspects of the case. The ALJ also carefully analyzed the claimant’s testimony in comparison with the medical record, particularly the emergency room records, which contained discrepancies with the claimant’s later testimony. 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), and we perceive no abuse of this discretion.
The findings noted above are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992). 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). We perceive no basis upon which to set aside the ALJ’s order.
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IT IS THEREFORE ORDERED that the ALJ’s order dated April 16, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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ANTHONY TORALBO, DENVER, CO, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
DARRELL S ELLIOTT, PC, Attn: ROBERT F JAMES, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: DAVID L SMITH, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS KATIE HEDBERG, DENVER, CO, (Other Party).
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