Opinion
W.C. No. 4-320-577
July 22, 1998
FINAL ORDER
The claimant seeks review of an order of an order of Administrative Law Judge Wells (ALJ) dated May 30, 1997. The claimant contests the ALJ's finding that the claimant failed to prove a compensable back injury. We affirm.
The claimant testified that he suffered an industrial back injury on Saturday, December 14, 1996, at approximately 7:00 a.m. The claimant testified that he went to the employer's premises on Saturday morning to pick-up his paycheck. When the paycheck was not found, the claimant stated that he "lost his temper" and threatened to take some of the employer's property. (Tr. pp. 11, 20). He also told the employer not to schedule him to work on Monday. (Tr. p. 20). The claimant stated that he then went to one of the employer's trucks where he had left his tools the night before. (Tr. p. 10). He testified that when he jumped out of the truck, he landed wrong and twisted his back. (Tr. 10). On Sunday, December 15, 1996, the claimant went to the Penrose Community Hospital Emergency Room where he sought treatment for back pain. The claimant did not work the following Monday, but stated that he called and reported the injury to the employer. (Tr. pp. 13, 29).
The ALJ discredited the claimant's testimony and resolved all evidentiary conflicts against the claimant. Relying on the testimony and medical evidence which contradicted the claimant's version of the injury, the ALJ determined the claimant failed to sustain his burden to prove that his back pain was caused by a traumatic injury arising out of and in the course of his employment on December 14, 1996.
On appeal, the claimant contends that the evidence which supports the ALJ's findings of fact is not "substantial" evidence. Therefore, the claimant argues the ALJ's order is contrary to the applicable law. We disagree.
The claimant bears the burden to prove that he sustained an injury arising out of an in the course of his employment. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The question of whether the claimant sustained his burden of proof is a factual determination for resolution by the ALJ, and we must uphold his conclusion if supported by substantial evidence in the record. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard, it is the ALJ's sole prerogative to assess the credibility of the witnesses and the probative weight of their testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We may not disturb the ALJ's credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Johnson v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0413, October 2, 1997). Moreover, the ALJ is not required to credit the claimant's testimony, even if uncontroverted. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ free to credit all, part, or none of a witness' testimony).
There were no witnesses to the claimant's alleged back injury. Therefore, the ALJ could discredit the claimant's testimony that his back pain was caused by jumping out of a truck on December 14, 1996.
Furthermore, the ALJ's findings are based on permissible inferences drawn from the circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). The claimant's co-worker, Jay Himes testified that the claimant's tools were in the warehouse on Monday, December 16, even though the claimant testified that he took the tools home on Saturday. (Tr. p. 52). In addition, the employer's witness, Mr. Martinez, denied the claimant's testimony that he reported the industrial injury on December 16. (Tr. p. 47). Based upon this evidence and the evidence concerning the claimant's outburst and threats when he did not get his paycheck, the ALJ could infer that the claimant's version of the injury was not accurate.
The ALJ also could, and did, interpret the December 15 16 reports of Dr. Medlin, the December 22, 1996 report of Dr. Kim, and the December 23, 1996 report of Dr. Hackenberg as indicating that the claimant denied his back pain was the result of a traumatic work-related injury on December 14. Accordingly, the ALJ's pertinent findings of fact are supported by substantial, albeit conflicting evidence in the record. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Consequently, the ALJ's denial of benefits is not contrary to the applicable law.
To the extent the claimant has further arguments, they are not persuasive.
IT IS THEREFORE that the ALJ's order dated May 30, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 22, 1998 to the following parties:
Michael M. Wixon, 740 14th Avenue North, Greybull, WY 82426
Randy Korum, Academy Insulation Drywall, P.O. Box 25357, Colorado Springs, CO 80936
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Anthony L. Sokolow, Esq., 620 S. Cascade, Ste. 103, Colorado Springs, CO 80903 (For the Claimant)
Glen Goldman, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________