Opinion
W.C. No. 4-809-172.
September 8, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 29, 2010, that denied and dismissed the claim for compensation. We affirm.
The claimant alleged he suffered a work injury to his back that occurred on November 4, 2009. In early November 2009 the claimant worked on a project to pave streets in a residential area. The claimant alleged that on November 3, 2009, he rolled up manhole covers weighing from 75 to 100 pounds and a number of water valve covers weighing 10-15 pounds. The testified that he used a putty knife to pry up the manhole covers. He alleged that he had a lot of low back pain after work on November 3, 2009. The claimant testified that he returned to work on November 4, 2009 with a lot of pain and groggy from medications. The claimant alleged he again removed a number of manhole covers and water valve covers on November 4, 2009. On November 10, 2009 Dr. Thomas reexamined the claimant who reported a history of lifting 75-pound manhole covers early the preceding week. Dr. Ridings performed an independent medical examination for the respondents. Dr. Ridings was unable to provide any specific diagnosis for the claimant, who complained of diffuse pain, but with no objective evidence of injury. Dr. Ridings concluded that the claimant was not credible and did not suffer any work injury. The ALJ concluded that the claimant failed to prove by a preponderance of the evidence that he suffered any work injury on November 4, 2009.
On appeal, the claimant contends that the ALJ erred in dismissing his claim. We are not persuaded to interfere with the ALJ's order.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his back condition arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S.; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000); Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 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's order was not supported by substantial evidence and that conflicts in the record evidence were not resolved. The claimant argues the ALJ did not meet the substantial evidence test in three specific instances.
I.
The claimant first contends the ALJ did not properly analyze the obvious symptomatic changes in the claimant from the time of the examinations made by Dr. Thomas in October 2009 and then in November 2009. The ALJ made the following pertinent findings of fact regarding Dr. Thomas. Beginning in January 2009, the claimant sought care from his personal physician, Dr. Thomas, due to chronic low back pain as well as depression. On October 6, 2009, the claimant returned to Dr. Thomas, complaining of low back pain aggravated by the job as well as bilateral foot numbness. On November 10, 2009, Dr. Thomas reexamined the claimant who reported a history of lifting manhole covers early the preceding week. The claimant complained of pain in his buttock radiating to his right big toe for one and one-half weeks. Dr. Thomas obtained a magnetic resonance image (MRI) of the lumbar spine on December 10, 2009, which was read as normal. Dr. Ridings noted that Dr. Thomas appeared simply to increase the claimant's dose of narcotics when the claimant reported increased pain and did not consider any psychological components to the claimant's pain complaints.
The claimant does not dispute the findings made by the ALJ listed above. Rather, the claimant argues that the ALJ ignored the difference in the claimant's condition between his October 2009 and his November 2009 examinations. As shown above the ALJ did make specific findings regarding the examinations made by Dr. Thomas on October 6, 2009 and November 10, 2009. The ALJ simply took note of different aspects of this evidence and was not persuaded to draw the conclusions urged by the claimant.
We note that the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Therefore the mere fact that the ALJ did not detail in his order all of the evidence the claimant viewed as significant does not provide grounds for appellate relief.
Moreover proof of causation is a threshold requirement which an injured employee must establish by a preponderance of the evidence before any compensation is awarded. Section 8-41-301(1)(c), C.R.S.; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). Here, the ALJ found that Dr. Ridings testified that Dr. Thomas had not provided any causation analysis, but had simply recorded the claimant's history of a work injury. Tr. at 114. Exhibit H at 63-65. The ALJ found Dr. Ridings' testimony was credible. We note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). The ALJ was not persuaded by the reports of Dr. Thomas, which did not contain a causation analysis, but was persuaded by the opinions of Dr. Ridings. In our view the ALJ entered sufficient findings to indicate the legal and factual bases of the order so that we may conduct meaningful appellate review and we see no reason to interfere with his order.
II.
The claimant next contends that the ALJ failed to meet the substantial evidence test by failing to reconcile conflicting objective evidence presented by Dr. Ridings regarding the claimant's medical status. The claimant contends the ALJ did not properly address the entirety of Dr. Ridings' medical report, which indicates at least the possibility that the claimant had suffered a work related injury. The claimant argues that the ALJ made no mention of the claimant's myofascial tone or his limited cervical flexion, range of motion, or cervical rotation, but merely relied on Dr. Ridings' conclusion that the claimant was not credible and did not suffer a work injury.
The ALJ made the following findings of fact relating to Dr. Ridings. Dr. Ridings performed an independent medical examination for the respondents. Dr. Ridings noted that the claimant demonstrated inconsistent examination results, including bending much further on one occasion when he was not being measured. The claimant had stocking numbness, no increased pain with provocative tests, and a history of seeking narcotics. Dr. Ridings was unable to provide any specific diagnosis for the claimant, who complained of diffuse pain, but no objective evidence of injury. Dr. Ridings concluded that the claimant was not credible and did not suffer any work injury. Dr. Ridings issued an addendum after reviewing additional medical records. He concluded that the claimant had significant preexisting low back pain and chronic narcotic usage. Dr. Ridings noted that Dr. Thomas appeared simply to increase the claimant's dose of narcotics when the claimant reported increased pain and did not consider any psychological component to the claimant's pain complaints. Dr. Ridings testified consistently with his reports, noting that Dr. Thomas had not provided any causation analysis, but had simply recorded the claimant's history of a work injury. The ALJ concluded that the testimony of Dr. Ridings was credible.
We again note that the claimant does not dispute any of the specific findings made by the ALJ listed above. Rather, the claimant urges consideration of certain portions of Dr. Ridings' reports that the ALJ did not detail in his findings. Again, we note that the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., supra. Therefore, the ALJ's failure to recite the entirety of Dr. Ridings' reports in his order does not supply a basis for appellate relief. It is clear from the record that Dr. Ridings' essential opinion is that the claimant did not suffer a work injury on November 4, 200. Exhibit G at 22; Tr. at 105-06. The ALJ found this opinion to be credible and we are not persuaded to interfere with it.
Moreover, the claimant complains of low back pain alleged to be due to performing lifting activities on the job. Most of the issues raised by the claimant regarding the ALJ's analysis of Dr. Ridings' reports appear to concern cervical flexion, range of motion and rotation. The claimant complains that the ALJ noted Dr. Ridings' finding that the MRI taken on December 10, 2009 showed no abnormalities of the lumbar spine. Tr. at 101-02. However, the claimant contends that the ALJ did not consider reports of an X-ray and an MRI taken of the cervical spine that showed mild degenerative changes to the claimant's cervical spine. We are not persuaded that the ALJ, when ruling on a claim for a low back injury, committed reversible error by failing to make detailed findings concerning notations in the medical record involving the claimant's cervical spine.
III.
The claimant finally contends that the ALJ erred in merely concluding, without apparent evidentiary support, that the claimant could not have pried open the manhole covers with a putty knife. We disagree.
The ALJ made the following pertinent findings of fact. The claimant's testimony was not credible. The employer witnesses included the claimant's supervisor and the employer's chief financial officer. Both of the employer witnesses testified credibly. The claimant testified inconsistently that he moved two manhole covers per hour and that he moved three or four manhole covers during the entire day. The claimant alleges that at the end of the workday, he reported a work injury to his supervisor, who ignored him and told him to get back to work. Tr. at 63. However, in fact, the claimant did not move any manhole covers on the project. The employer was using a single layer of asphalt. Consequently, the asphalt was poured into a level one inch above the level of the manhole covers. As such, the manhole covers did not obstruct the paving machine and did not have to be removed at any time on this project. The claimant moved the smaller water valve covers so that he could attach a chain to the sleeve under the cover. The supervisor then pulled the sleeves up to grade level using the loader. On the evening of November 4, 2009, the claimant did not report to the supervisor that he had suffered any work injury. Rather, the claimant and the supervisor had a disagreement and the claimant angrily quit his employment. The next day the claimant then asked the supervisor to change the forms to show that he had been fired so that he could apply for unemployment insurance benefits. The supervisor said that he had already completed the documents to show that the claimant quit. The claimant asked the employer's chief financial officer if he could work on one of the employer's other crews, but was told that the work was "winding down" and that he was not needed. The claimant picked up his pay check and handed the financial officer a report of a work injury on November 4, 2010.
The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that he suffered any work injury on November 4, 2009. In reaching this conclusion the ALJ relied in part on his finding that the claimant could not possibly pry up a manhole cover with a putty knife as alleged.
The claimant concedes that the respondents introduced into the record a variety of evidence to dispute the claimant's testimony regarding whether the claimant actually moved and lifted the manhole covers. However, the claimant argues that there is no apparent evidence anywhere in the record suggesting the claimant could not possibly pry up a manhole cover with a putty knife. The claimant argues that the ALJ merely chose to conclude that it was impossible to lift a manhole cover with a putty knife.
We first note that there is ample evidence to support the ALJ's decision without consideration of the putty knife issue. In our view, the evidence detailed above and not challenged by the claimant, constitutes substantial evidence sufficient to support the ALJ's determination that the claimant failed to prove by a preponderance of the evidence that he suffered any work injury on November 4, 2009. Therefore, we are not persuaded that the ALJ erred.
Moreover, we disagree with the claimant that there was no evidence that the manhole cover could not be pried up with a putty knife. The supervisor testified that moving a manhole cover is a two-man operation. Tr. at 60. The supervisor explained that one man uses a shovel to pry the cover up and the other person flips it over. Tr. at 60. The supervisor specifically testified that a manhole cover could not possibly be pried up with a putty knife. Tr. at 60-61. The supervisor further testified that no one had to lift a manhole cover on the project in question. Tr. at 61. Therefore there was direct evidence on this issue from the claimant's supervisor and the ALJ chose to credit the testimony of the supervisor. We 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). In our view this constitutes substantial evidence supporting the ALJ's determination and so is binding on us. Section 8-43-301(8).
Moreover, even without the testimony of the supervisor regarding the putty knife the ALJ, as the fact finder, is allowed to use reason and common sense in drawing inferences from other facts that have been proved. Venetucci v. City of Colorado Springs 99 Colo. 389, 63 P.2d 462 (1936); Independence Coffee Spice Co. v. Kalkman 61 Colo. 98, 156 P. 135 (1916). Here, the claimant's own testimony that the manhole covers weigh between 75 and 100 pounds supports the inference that a manhole cover could not be lifted with a putty knife. In our view this was a reasonable inference for the ALJ to draw.
IT IS THEREFORE ORDERED that the ALJ's order dated April 29, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
NOEL KING, COLORADO SPRINGS, CO, (Claimant).
ROCKY MOUNTAIN MATERIALS ASPHALT, Attn: KATHERYN MEDINA, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, DENVER, CO, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: MARCUS ZARLENGO, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MARK PETTERSON, DENVER, CO, (Other Party).