Opinion
W.C. No. 4-266-748
November 5, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which determined that the claimant suffered a compensable injury, and awarded benefits. The respondents contend that there is insufficient evidence in the record to support the ALJ's finding that the claimant's injury arose out of and in the course of her employment as a cashier for Wal-Mart Stores, Inc. (Wal-Mart). We disagree, and therefore, affirm.
The ALJ found that the claimant injured her left thoracic region on June 1, 1995, as a result of the repetitive activities of her job. In so doing, the ALJ credited the claimant's testimony that her job duties consisted of repetitive lifting, bending and twisting. With regard to June 1, the claimant testified that she was particularly busy at work, became very hot and sweaty, and as a result almost fainted. She then experienced a sudden onset of pain extending from her back, around her side, and into her chest and arm.
The ALJ also determined that a specific medical diagnosis for the claimant's injury has not yet been determined and that further diagnostic testing is necessary. However, the ALJ found that in the opinions of the authorized treating physicians the claimant either suffered a "compression fracture at T3 or T4", or "a strain-type trauma resulting in an acute neural element irritation."
As argued by the respondents, the claimant bore the burden to prove by a preponderance of the evidence that the injury "arose out of" and "in the course" of her employment. Section 8-43-201 8-41-301(1)(b), C.R.S. (1996 Cum. Supp.) Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). An injury arises out of and in the course of employment when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his or her job functions that the injury may reasonably be characterized as an incident of the employment. City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995).
Whether the claimant has sustained her burden of proof is a question of fact for the ALJ. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Consequently, we must uphold the ALJ's finding that the claimant suffered a compensable injury if supported by substantial evidence in the record. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we must also defer to the ALJ's assessment of the sufficiency and probative value of the evidence, including the medical evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Furthermore, we may not disturb the ALJ's credibility determinations, unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, the ALJ credited the claimant's testimony, and the claimant's testimony constitutes substantial evidence to support the ALJ's findings. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant's testimony was substantial evidence that employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Consequently, we reject the respondents' argument that there is "no probative" evidence of a work-related injury.
Furthermore, it is true that the ALJ may not liberally interpret the facts in favor of the claimant. Section 8-43-201 C.R.S. (1996 Cum. Supp.). However, where the evidence, including medical evidence, is subject to conflicting inferences, it is the ALJ's sole prerogative to resolve the conflicts in favor of the claimant or the respondent. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Insofar as the record contains evidence that the claimant initially attributed her pain to a heart attack, or made other statements inconsistent with a June 1 industrial injury, the ALJ exercised her authority to resolve the inconsistencies in the claimant's favor. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication) (inconsistencies, contradictory evidence and incomplete testimony are not uncommon to the adversary process). Specifically, the ALJ determined that the attending physicians ruled out the possibility that the claimant experienced a heart attack. The ALJ also found that several things were happening to the claimant on June 1, 1995, which lead to the claimant's "scattered" presentation to the attending physicians, and subsequent "confusion" concerning the cause of the claimant's pain. See Summary Order March 20, 1996. However, the ALJ determined that "the Claimant told the doctors and the Judge the history as best she could."
Next, the respondents contend that the claimant's testimony was directly rebutted by the medical evidence and the testimony of Maggie Green, the Wal-Mart Customer Service Manager. Therefore, the respondents argue that the claimant's testimony is incredible as a matter of law. We disagree.
Contrary to the respondents' argument, the reports of Dr. Whittsitt and the testimony of Dr. Malek do not contradict the claimant's testimony that she suffered a work-related injury on June 1. Dr. Malek did not render an opinion concerning that issue. Rather, he stated that the claimant was depressed when he examined her on June 20, 1995, and that the depression was the probable result of many factors including her report of chest pain. (Malek Depo. p. 15). Similarly, Dr. Whittsitt, who examined the claimant at the hospital on June 1, noted the claimant's complicated medical history and recommended that the claimant be hospitalized for further tests to determine the physiological cause of the claimant's pain. However, Dr. Whittsitt did not purport to rule out a causal connection between the claimant's pain and her work activities. We also note Dr. Bush's testimony that he did not know the cause of the claimant's pain complaints, even though the claimant's history was inconsistent with a compression fracture. (Bush Depo. pp. 18, 23, 29, 27).
In contrast, Dr. Maruyama stated his opinion that the claimant strained her back on June 1, 1995 from repetitive lifting during her employment. (Maruyama Depo. pp. 12, 23). Dr. Maruyama also stated that the claimant's reports of chest pain are not inconsistent with a thoracic spine strain. (Maruyama Depo. p. 25).
Similarly, the testimony of Maggie Green does not directly rebut the claimant's testimony that she was injured at work on June 1. It is true that Ms. Green did not observe the claimant to be bleeding or bruised on June 1. However, the claimant did not allege that the injury caused bleeding or bruising. In contrast, Ms. Green stated that the claimant is an "honest" person. (Green Depo. p. 9). Ms. Green also corroborated the claimant's testimony that her job requires repetitive bending, stooping, twisting, and lifting up to twenty pounds, and that Wal-Mart was very busy on June 1, 1995. (Green Depo. pp. 6, 8). Further, Ms. Green's testimony was consistent with the claimant's statement that she experienced an usual amount of sweating on June 1, during which she felt faint and reported pain in her chest and arm. (Green Depo. p. 6).
Lastly, we agree with the ALJ that the absence of a definitive diagnosis for the physiological effects of the industrial injury is not dispositive of whether the claimant suffered a compensable injury. In fact, regardless of whether the exact medical cause of the injury is "shrouded in mystery," the evidence is sufficient to establish compensability if the claimant presents circumstances indicating a reasonable probability that the injury resulted from or was precipitated by, the employment activities. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968). Consequently, the fact that the treating physicians disagreed on the diagnosis, or the possibility that neither of the two diagnoses which have thus far been advanced is correct, did not preclude the ALJ from finding a causal connection between the claimant's condition and her employment activities.
It follows that for purposes of determining the compensable nature of the injury, the ALJ was not required to determine which of the two diagnostic theories was correct. In fact, the ALJ expressly recognized that further diagnostic testing is necessitated to determine an exact diagnosis. Therefore, the absence of a finding concerning the proper diagnosis of the claimant's injury does not render the ALJ's order insufficient to permit appellate review.
To the extent that the respondents may be understood as making further arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated June 18, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed November 5, 1996 to the following parties:
Janice M. Davis, 1738 North Denver Ave., Loveland, CO 80538
Wal Mart Stores, Inc., P.O. Box 116, Bentonville, AR 72712-0116
Ins. Co. of the State of Pennsylvania, American Intl. Adj. Co., P.O. Box 32130, Phoenix, AZ 85018 % Claims Management, Inc., Attn: Pam Morrison, P.O. Box 1288, Bentonville, AR 72712-1288
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For the Respondents)
W. Clark Litten, Esq., 50 S. Steele St., Ste. 586, Denver, CO 80209 (For the Claimant)
BY: _______________________