Opinion
W.C. No. 4-664-403.
November 7, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated April 17, 2006 that denied and dismissed the claim for compensation. We affirm.
The ALJ's pertinent findings of fact, which are not disputed by the claimant, are as follows. The claimant was employed as a plumber and on September 22, 2005 the claimant repaired a leaky faucet which required him to be on his back in an awkward position. The claimant testified that when he applied torque to a nut on the pipe it loosened suddenly and he felt a pop in his right shoulder. He completed the job and did not call in to report the injury, but did call in to the office to ask for the next job. He objected to the type of work offered as he considered himself a service plumber and not a remodel plumber and so declined to do the work. He had declined jobs due to this job preference several times in the past. The next day he called into the office as usual and requested his next job assignment and was told the only available job available was installation of a water heater which the claimant again declined as he considered this remodel work rather than service work. The claimant then reported that he had injured his right shoulder at work the day before. The claimant was referred to the designated provider Dr. Kiernan who arranged an MRI which revealed a full-thickness tear of the supraspinatus. The claimant under went conservative treatment and surgery was discussed.
The ALJ also made the following findings of fact, which are disputed by the claimant. When he was seen by Dr. Kiernan the claimant denied any prior right shoulder problems, which statement was not true as the claimant had suffered a right shoulder injury in a motorcycle accident in late 2001. The claimant also reported his hobbies as reading to Dr. Kiernan, which was not entirely accurate as he engages in dirt bike riding and competitive motorcycle hill climbing. Findings of Fact, Conclusions of Law, and Order at 3 ¶ 6. In addition the ALJ found that the claimant's credibility was hurt by the fact that he initially denied any prior right shoulder injury and that he tried to hide the fact that he engages in competitive motorcycle hill climbing. The ALJ found the most important fact is that the claimant requested further work twice after allegedly injuring his right shoulder at work, and only reported the injury after being told twice that the only work available was work that he refused to perform. The ALJ further found that it is improbable that a worker would request more work and then decide that he is injured only after being offered jobs he prefers to avoid. These circumstances were found by the ALJ to make it less likely that the claimant injured his shoulder at the time and place he claimed. The ALJ found the claimant's testimony was not credible or persuasive. Findings of Fact, Conclusions of Law, and Order at 4 ¶ 13.
On appeal the claimant contends the ALJ erred in finding the claimant's testimony was not credible and the denial of the claim was not supported by the record. We disagree.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2006. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met his burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. Under this standard, we must defer to the ALJ's credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant argues that the ALJ erred in finding the claimant denied prior shoulder problems noting he did not deny them at hearing. Tr. at 15. The claimant argues that the ALJ did not specify upon which statements or representations by the claimant she relied on in finding that the claimant denied prior shoulder problems. However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence she considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Furthermore, the claimant's assertions notwithstanding, the record fully support the ALJ's findings. In our view a reasonable inference could be drawn from the interview conducted by the claims adjuster that the claimant's answers to questions regarding prior injuries to his shoulder were misleading or at least not completely forthcoming. Exhibit J at 70-71. The claimant reported to Dr. Kiernan that he had no prior history of injuries to the shoulder, and no injuries for the last ten years. Exhibit A at 1. The claimant was asked to fill out a medical questionnaire at the office of Dr. Jones. In response to the question of how long he had trouble with his shoulder the claimant listed September 22, 2005, the date of the accident in question and not the motorcycle accident in late 2001.
The claimant offers reasonable explanations and possible interpretations of these actions, but essentially requests that we reweigh the evidence on review. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and we decline the claimant's invitation to do so. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant is disturbed with the ALJ's finding that it is improbable that a worker would request more work and then decide he is injured only after being offered jobs he preferred to avoid. We find this a reasonable inference to draw. Further, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App.) We perceive no basis on which to interfere with the ALJ's finding.
IT IS THEREFORE ORDERED that the ALJ's order dated April 1, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Robert Bergman, Colorado Springs, CO, Jolly Plumbing Heating, Inc., Cheryl Hilton, Colorado Springs, CO, Pinnacol Assurance, Brandi Svoboda, Denver, CO, Ruegsegger, Simons, Smith Stern, LLC., Vito A. Rancanelli, Esq., Denver, CO, (For Respondents).
Steve U. Mullens, P.C., John V. Fitzsimmons, Esq., Colorado Springs, CO, (For Claimant).