Opinion
W.C. No. 4-315-226
November 6, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ), insofar as it determined that the claimant sustained a compensable injury and awarded temporary disability benefits. We affirm.
At the hearing, the claimant testified that she injured her back on September 27, 1996, when she stooped to pick up trays in the course of her employment with respondent Furr's/Bishop's, Inc. (Furr's). The ALJ found that the claimant did not initially report the injury to her supervisors. However, the ALJ credited the claimant's testimony that she delayed reporting because she thought the injury was minor. The ALJ also credited the deposition testimony of Dr. Ghavam that, in view of the claimant's probable testimony at the hearing, it was more likely than not that that back injury was caused by the lifting incident. Consequently, the ALJ found that the claimant sustained a compensable injury.
Concerning temporary disability benefits, the ALJ found that the claimant had given notice of her resignation from Furr's prior to suffering the injury on September 27. However, the ALJ concluded that, in view of the "injury and resulting medical restrictions, the injury continued to contribute to some degree to her ongoing unemployment." Thus, the ALJ awarded temporary total disability benefits.
I.
On review, the respondents contend that the claimant's testimony concerning the cause of her back condition is incredible as a matter of law. In support of this proposition, the respondents point out inconsistencies in the claimant's testimony concerning the precise time at which she experienced the onset of symptoms. The respondents also rely on other factors including the claimant's failure immediately to report the injury, her failure to explain the mechanism of the injury to her physicians, and the fact that the claimant initially sought medical coverage from her health insurer. The respondents also assert that the medical evidence cited by the ALJ is speculative and unreliable. We are not persuaded.
The question of whether the claimant carried her burden of proof to establish causation is one of fact for determination by the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
The substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We are not at liberty to set aside an ALJ's credibility determinations unless the testimony is rebutted by hard, certain evidence which renders the testimony incredible as a matter of law. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Moreover, to the extent the testimony of a witness is internally inconsistent, it is the province of the ALJ to resolve the inconsistencies by believing all, part, or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Finally, proof of causation need not be by medical evidence. However, to the extent medical evidence is presented, it is the sole prerogative of the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, supra.
The respondents' arguments notwithstanding, the claimant's testimony may not be deemed incredible as a matter of law. The claimant explained her failure to report the injury to the employer, and the ALJ was persuaded by this explanation. Moreover, the medical records are subject to conflicting inferences concerning the extent to which claimant gave a history of injuring her back on September 27 while lifting trays. Dr. Moran testified that, although the claimant did not give such a history, he did not specifically inquire about the mechanism of the injury. (Moran Depo. p. 33). Moreover, notes from Dr. Ghavam's nurse indicate that the claimant gave a history of injuring her back while lifting trays. (Ghavam Depo. p. 25).
It is true that the ALJ did not dispose of every possible conflict in the evidence, nor did he discuss every inconsistency in the claimant's testimony. However, all that is necessary is for the ALJ to make findings of fact concerning the evidence which he considers to be dispositive of the issues involved. Here, the ALJ has done so, and we decline the respondents' invitation to substitute our judgement for that of the ALJ concerning the claimant's credibility. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The respondents also assert that the ALJ erred in relying on Dr. Ghavam's deposition testimony in response to a hypothetical question posed by claimant's counsel. Counsel for the claimant laid out the claimant's expected testimony concerning the mechanism of the injury. In response, Dr. Ghavam opined that, if it was assumed that the claimant lifted the trays and felt pain, it was more likely than not that the lifting caused the claimant's injury. (Ghavam Depo. pp. 46-47). The respondents' argument is that the hypothetical question did not set forth all of the evidence in the case, and that the hypothetical history is not true. We are not persuaded.
In our view, the hypothetical question fairly reflects the claimant's testimony given at the subsequent hearing. Moreover, the fact that the hypothetical question did not contain every element of the claimant's medical history does not render Dr. Ghavam's opinion incompetent. Rather, the incompleteness of the question, if any, was a factor for the ALJ to assess in determining the credibility or probative value of the testimony. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). Further, the respondents were given the opportunity to examine Dr. Ghavan concerning his answer to the hypothetical. Ultimately, the evidence is fully sufficient to support the ALJ's finding of causation. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
II.
The respondents also argue that the ALJ erred in awarding temporary disability benefits because the claimant voluntarily quit her employment on September 26, 1996. The respondents rely on evidence that Furr's "would have offered claimant a job within her medical restrictions" had she not quit. The respondents cite no authority in support of their position, and we find no error.
Assuming, arguendo, that the claimant's pre-injury decision to quit her employment with Furr's may be considered a cause of her subsequent wage loss, we perceive no error in the ALJ's order. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court established a procedure to be followed in cases where an employee suffers a work-related injury and is subsequently terminated from the employment in which the injury occurred. The court held that there must be an "initial determination" concerning whether the "termination was for fault." If the termination was for fault, the employee is not automatically barred from receiving temporary disability benefits. Instead, the burden shifts to the employee to prove that the work-related injury was, to some degree, the cause of the post-separation wage loss.
Here, the claimant testified that she quit her employment with Furr's, but intended to seek other employment. (Tr. pp. 9, 19). Moreover, there is medical evidence that the claimant was restricted from performing her regular duties at Furr's. Thus, there is substantial evidence from which the ALJ could infer that the claimant's post-injury wage loss was, to some degree, caused by the industrial injury.
IT IS THEREFORE ORDERED that the ALJ's order dated March 13, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona HalseyNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 6, 1997 to the following parties:
Nancy A. Chancellor, 11659 Penn St., Northglenn, CO 80233
Furr's/Bishop's Cafeteria, 6901 Quaker Ave., Lubbock, TX 79413
Cafeteria Operators, LP, P.O. Box 6747, Lubbock, TX 79493-6747
Ins. Co. of the State of Penn., AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85018
Ms. Tommie Biggers, Willis Corroon, P.O. Box 12069, Oklahoma City, OK 73157-2069
Michael Dominick, Esq., 250 Arapahoe Ave., Ste. 301, Boulder, CO 80302 (For the Claimant)
Richard A. Bovarnick, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For the Respondents)
By: __________________________