Opinion
W.C. Nos. 4-711-498, 4-718-376.
August 28, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated January 7, 2009, that denied and dismissed the claim for compensation designated as W.C No. 4-718-376 and denied the claim for certain medical benefits in the claim designated as W.C. No. 4-711-498. We affirm.
The claimant alleged she suffered a compensable injury on December 14, 2006 designated as W.C No. 4-718-376 (December 14, 2006 injury). She testified that on December 14, 2006 she was operating a floor-cleaning machine and when she put the machine into reverse it hit her in the abdomen, pinning her against the wall. The claimant had abdomen pain and as she tried to walk away, she slipped on water and hit her buttocks and right elbow when she fell, which caused pain in her low back. The ALJ found that the claimant's testimony concerning the alleged injury of December 14, 2006 was not credible and instead credited the testimony of the employer's witnesses. The ALJ also relied on medical records that failed to contain any history of the December 14, 2006 injury. The ALJ denied and dismissed the claim for compensation for the alleged December 14, 2006 accident.
The claimant sustained an admitted injury on July 1, 2006 while employed as a janitor for the employer, designated as W.C. No. 4-711-498 (July 1, 2006 injury). The ALJ found that the medical conditions related to the July 1, 2006 injury were right ankle strain with compensatory problems with the right knee and right cranial contusions. The ALJ found that the claimant's cervical pain, lumbar pain, left inguinal hernia and abdominal dysfunction were not causally related to the July 1, 2006 injury. The ALJ found that the psychological condition related to the July 1, 2006 was a pain disorder as assessed by Dr. Vicente. The treatment the claimant received from Dr. Severn for depression and PTSD was not causally related to the July 1, 2006 injury. The ALJ concluded that as of February 11, 2008 when she was examined by Dr. Vicente, the claimant was not in need of any psychological treatment related to the July 1, 2006 injury. The ALJ denied and dismissed the claim for medical benefits for treatment of the claimant's low back, abdomen and psychological treatment at Rose Medical Center alleged to be connected to the July 1, 2006 admitted claim.
I.
On appeal the claimant first contends that the ALJ erred in denying and dismissing the December 14, 2006 injury claim for compensation. We are not persuaded that the ALJ committed any reversible error.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her claimed injuries arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a "contested fact is more probable than its nonexistence." Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Under this standard we are required to defer to the ALJ's resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
The claimant acknowledges that there were substantial conflicts between her testimony and the testimony of her supervisor, a co-employee's testimony and testimony from the employer's administrative services manager. However, the claimant argues that the employer witnesses cannot be found more credible and persuasive just because the testimony of all three substantially agreed. The claimant also argues that some of the testimony from the employer's witnesses supports her testimony and that conflicts exist between the testimony of the employer's witnesses.
Here the claimant testified that on December 14, 2006 the floor cleaning machine she was operating charged her and hit her in the abdomen, pinning her against the wall when she put it into reverse. Tr. (10/22/2008) at 33-34. The claimant stated the machined actually "jolted" or "jumped" backward pinning her and causing severe immediate abdominal pain. A co-employee testified that he regularly uses the floor-cleaning machine in question and that it operates very slowly in reverse and does not have the ability to jump or jolt in reverse as claimed by the claimant. Tr. (12/15/2008) at 186-88. The employer witnesses testified that the machine in reverse must be operated with both hands and the instant one hand is removed from the controls, or the machine makes contact with an object, it automatically stops. Tr. at 146 187-88. The same co-employee observed the claimant enter the men's locker room on December 13, 2006, the day before her alleged accident, and reported it to his supervisor. Tr. (12/15/2008) at 192-93 . Prior to December 13, 2006 the claimant had been advised that she was not to enter the men's locker room. Tr. (12/15/2008) at 193. When the claimant arrived for her shift on December 14, 2006, the supervisor asked her to meet with him and the administrative services manager to discuss her entering the men's locker room. Tr. (12/15/2008) at 141-43 222. At the meeting the claimant was placed on immediate suspension and sent home. Tr. (12/15/2008) at 226. At no time before or during the meeting on December 14, 2006 did the clamant report any December 14, 2006 injury or request medical treatment, other than to state that she had a stomachache. Tr. (12/15/2008) at 145 223.
We note that we may not substitute our judgment by reweighing the evidence in order to reach inferences different from those the ALJ drew from the evidence. See Johnson v. Indus. Claim Appeals Office, 973 P.2d 624, 626 (Colo. App. 1997) (ALJ's prerogative to evaluate evidence "extends to resolving the inconsistencies in a particular witness' testimony"); Sullivan v. Indus. Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony). We cannot say that by resolving the conflict in the evidence against the claimant that the ALJ committed reversible error.
The claimant further argues that the ALJ erred in relying on the fact that the medical records did not contain a history of the claimant's alleged injury. The claimant argues that she testified that the medical reports created after December 14, 2006 are inaccurate as they do not contain any mention of her December 14, 2006 injury. The claimant contends that she reported her injuries from the December 14, 2006 accident but that her doctors disregarded her complaints. The claimant argues that physicians commonly fail to record secondary or less obvious injuries particularly when there is a language barrier. The claimant argues that although lay interpreters were present during some of the medical visits this does not compel the inference that the claimant was able to communicate her secondary injuries.
The ALJ noted that the medical record contains reports prepared after the alleged December 14, 2006 injury, and that they contain no reference to that alleged injury. The ALJ made the following findings of fact with record support. The claimant was seen at Presbyterian Hospital for various complaints but the records do not mention a December 14, 2006 injury. Exhibit Q at 244-48. The claimant saw Dr. Miller on March 19, 2007 but did not mention a December 14, 2006 injury and denied any new accidents since her previous visit on November 29, 2006. Exhibit B at 18. The claimant underwent a Division-sponsored independent medical examination (DIME). The claimant did not give a history to the DIME physician of a December 14, 2006 injury at her examination on May 29, 2007 although at a follow up examination on December 28, 2007 she did report the injury. Exhibit J at 101-104; Exhibit J at 114. The claimant saw Dr. Severn on August 2, 2007 but gave no history of a December 14, 2006 injury. Exhibit O at 159. The claimant saw Dr. Hewitt on September 28, 2007 and made no report of a December 14, 2006 injury. Exhibit H at 96. On March 12, 2007 the claimant was seen at Clinica Tepacy for an annual exam and she gave no history of a December 14, 2006 injury. Exhibit I at 98. Dr. Yamamoto reviewed the medical record and commented that it was interesting that the December 14, 2006 injury was not documented and there was no mention of it until the follow-up DIME on December 28, 2007. Exhibit K at 125.
In our view, the ALJ was not compelled to accept the claimant's testimony that these medical reports were all inaccurate as they did not contain any mention of her December 14, 2006 accident despite her contention that she reported it to the physicians. Instead, in our view, the ALJ acted well within his discretion in finding that the claimant's testimony was incredible and unpersuasive when testifying that the medical reports were all inaccurate.
The claimant also argues that the ALJ erred in denying the case because there is no medical evidence that the claimant was injured elsewhere. However, the burden of proof always rests with claimant in a workers' compensation case and there is no presumption in favor of compensability. See City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
II.
The claimant next contends that the ALJ erred in denying and dismissing the claims for medical benefits for her low back, abdomen, and psychological condition as causally related to the July 1, 2006 injury. Again, we are not persuaded that the ALJ committed reversible error.
The ALJ found that the opinions of the DIME physician to be the most credible and persuasive regarding which medical conditions were causally related to the July 1, 2006 injury. The DIME physician opined that the medical conditions related to the July 1, 2006 injury were right ankle strain with compensatory problems with the right knee and right cranial contusions. Exhibit J at 105-106. The DIME physician opined that the claimant's cervical pain, lumber pain, left inguinal hernia and abdominal dysfunction were not causally related to the July 1, 2006 injury. Exhibit J at 105-106.
The ALJ found the opinion of Dr. Vicente to be credible and persuasive regarding the existence of any psychological symptoms or depression related to the July 1, 2006 injury. Dr. Vicente opined that the claimant presented with a pain disorder with psychological and medical factors secondary to the work injury of July 1, 2006. Exhibit M at 136. Dr. Vicente opined that the claimant's overall presenting pain disability may be seen as directly attributable to the July 1, 2006 injury. Exhibit M at 137 . The DIME physician found that depression was not present on clinical examination of the claimant. Exhibit J at 114. The ALJ relied on Dr. Vicente and found that no further psychological treatment was necessary and that the treatment the claimant received from Dr. Severn was not causally related to the July 1, 2006 injury.
In our view the opinions of the DIME physician and the opinions of Dr. Vicente are substantial evidence supporting the ALJ determination that the claimant failed to sustain her burden of proof that her low back and abdominal conditions, PTSD and depression are causally related to her July 1, 2006 injury. Although, as pointed out by the claimant there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). We perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated January 7, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
GLORIA HUIZAR, DENVER, CO, (Claimant).
ACE AMERICAN INSURANCE COMPANY, Attn: ANITA FRESQUEZ-MONTOYA, C/O: ESIS, INC., TAMPA, FL, (Insurer).
AMADO L CRUZ, Attn: AMADO L.CRUZ, ESQ., DENVER, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, Attn: KATHLEEN M. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).