Opinion
W.C. No. 4-719-618.
March 25, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated November 5, 2008, that denied and dismissed the claimant's claim that she suffered an occupational disease. We affirm.
The claimant was employed as a food service worker for the respondent employer. The claimant's job consisted of making various bakery goods. This work included operation of a particular machine, which required the claimant to pull down a lever with a counter weight. The machine would vibrate. The claimant testified that she started having neck problems associated with her work activities. The claimant had neck surgery on December 12, 2006. The ALJ determined that the credible medical and other evidence failed to show that it was more probably true than not that the claimant's neck/cervical pathology was an occupational disease arising out of and in the course of her employment with the respondent employer. The claimant brings this appeal.
We initially note that the claimant had the burden to prove that her alleged disability was proximately caused by an injury or occupational disease arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2008. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The claimant contends that the ALJ erred in his finding that the claimant had not complained of neck pain associated with her job activities at any time before the filing of the claim of April of 2007. Findings of Fact § 15 at 3. The claimant argues that the employer knew that the claimant was having neck pain associated with her job duties in the kitchen and that this was the specific reason why the employer gave her a transfer to another position. The claimant cites testimony from the employer's food service supervisor, which supports this contention. Tr. at 139-40. The claimant argues that the evidence from the food service supervisor is unrebutted. The claimant therefore contends that the ALJ was compelled to assume the evidence was accurate and his failure to do so constituted reversible error. We perceive no basis on which to interfere with the ALJ's finding.
The claimant's own testimony supports the ALJ's finding that she had not complained of neck pain connected with her work until April 2007. On cross-examination the claimant, when reminded of a statement made previously in discovery, agreed that she had not notified anyone until she filed the claim in April 2007. Tr. at 46, 48. In addition, the respondents introduced into evidence the Workers' Compensation First Report of Injury. Exhibit A; Tr. at 8. As found by the ALJ, the claimant prepared that report and listed April 9, 2007 as the date the employer was notified. Exhibit A.
In addition, the claim here involves neck problems asserted to be associated with her work activities. Here, although the food service supervisor originally testified that the claimant complained of neck problems, she later testified that she could not remember if the claimant stated it was her neck or back that was bothering her. Tr. at 140. In our view the ALJ, under these circumstances was not compelled to conclude that the supervisor's testimony was that the claimant complained of neck pain before April 2007. To the extent testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Although there was a conflict in the evidence, in our view there is substantial evidence in the record to support the ALJ's finding that claimant had not complained of neck pain associated with her job activities at any time before the filing of the claim of April of 2007. Consequently, as noted above, that finding must be upheld on review.
Moreover, we disagree with the claimant's argument that the ALJ must credit evidence which stands unrebutted. To the contrary, in determining facts the ALJ is under no obligation to accept testimony, even if such testimony is uncontroverted. Levy v. Everson Plumbing Co., 171 Colo. 468, 468 P.2d 34 (1970); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
As we read the ALJ's order, the medical evidence played an important role in his decision. Here, the claimant offered the opinion of her family physician to support compensability. The family physician stated that there likely was an association between her activity at work and the pain that she was having in her neck. Exhibit 7. The respondents arranged for an independent medical examination (IME). The IME physician opined that the claimant's job activities did not cause the claimant's neck problems. Exhibit E at 26. The IME physician also stated that the claimant's work activities did not aggravate her neck pathology. The ALJ found that the medical opinion of the IME physician to be more credible than that of the family physician. The claimant contends the ALJ erred in this credibility determination.
It is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). 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).
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). However, here the ALJ noted the claimant's expert witness had a specialty in family medicine with only two months of training in orthopedics 15 years ago, had let lapse her Level I accreditation by the Colorado Division of Workers' Compensation, and never had a Level II accreditation. The ALJ noted that the family physician had no information on the claimant's job duties other than what the claimant told her, and was not shown the jobsite photos shown to the respondents' IME. The ALJ noted that the family physician had no formal training in occupational medicine or physical medicine and rehabilitation.
The claimant argues that the respondents' IME connection with the insurer as a SelectNet member results in an inherent bias and the ALJ erred by not making a specific findings of fact on this issue. However, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The absence of specific findings of fact on the evidence the claimant relies upon in support of her claim does not compel a finding the ALJ failed to consider the evidence. Cf. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (presumption exists that ALJ considered and gave due weight to relevant statutory factors). Further, testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001).
In addition allegations of conflicts of interest resulting from a direct or substantial financial interest by physicians expressing opinions involving disputes under the Workers' Compensation Act has recently been dealt with by the Colorado Court of Appeals in Benuishis v. Industrial Claim Appeals Office 195 P.3d 1142 (Colo.App. 2008), cert, denied, (Colo. Nov. 24, 2008) (No. 08SC665). In Benuishis, as here, the allegation was that the physician performing the DIME had a conflict of interest because of the physician's connection with the insurer as a SelectNet member and physician advisor. The fact that the IME was a member of SelectNet does not presumptively disqualify a physician from expressing opinions in a disputed workers' compensation claim. Therefore, it remained within the discretion of the ALJ to determine the weight and credibility to be assigned expert testimony. Cordova v. Industrial Claim Appeals Office, supra. Because of the absence of any extreme circumstances here, the ALJ's credibility determinations are binding. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
IT IS THEREFORE ORDERED that the ALJ's order dated November 5, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
ANTOINETTE MARTIN, MONUMENT, CO, (Claimant), LEWIS PALMER SCHOOL DISTRICT #38, Attn: MS AMY ROSE-BAGWELL, MONUMENT, CO, (Employer), PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer), STEVEN U MULLENS, P.C, Attn: ROBERT W TURNER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents), PINNACOL ASSURANCE, Attn: MS ROCIO GONZALEZ, DENVER, CO, (Other Party).