Opinion
W.C. No. 4-703-696.
March 13, 2008.
FINAL ORDER
The respondent seeks review of a supplemental order of Administrative Law Judge Jones (ALJ) dated November 1, 2007, which found that the claimant had sustained a compensable injury and awarded medical and temporary disability benefits. We affirm.
The ALJ initially entered an order dated July 9, 2007. The respondent filed a corresponding petition to review. In support of its petition, the respondent challenged the ALJ's findings that the claimant had no previous back pain and suffered immediate symptoms after her work-related injury. The ALJ entered a supplemental order, several findings in which are summarized as follows. The claimant worked as a housekeeper. She participated in a race sponsored by the employer. She injured her back during the race on September 11, 2006, but did not report the injury until October 27, 2006. The injury caused the claimant to sustain a herniated disc. Although the claimant had sought treatment for back pain prior to her work injury, she was pain-free until her injury on September 11, 2006, the day after which she awakened with pain. The claimant became disabled from her usual employment as of October 17, 2006. The ALJ delayed the commencement of temporary total disability benefits due to the claimant's late reporting of her injury. The ALJ also ordered the respondent to pay for the claimant's medical treatment, including surgery.
The ALJ had originally found that the claimant "credibly testified that she had no previous problems one year prior to her injury." The ALJ also found that the claimant's "symptoms were brought on immediately." Findings of Fact, Conclusions of Law, and Order (dated July 9, 2007), at 3, ¶ 7. The respondent filed a petition to review challenging these findings and the ALJ entered a supplemental order. The ALJ found that the claimant sought medical treatment for back pain eight months prior to her work injury, but that the claimant "credibly testified" that she felt better after an adjustment and "did not again experience pain" until her work injury. The ALJ also found that the claimant "credibly testified" that she awakened with pain the day following her work injury. Supplemental Order at 3 (unpaginated), ¶ 7.
The respondent asserts on appeal that there is insufficient evidence in the record to support the ALJ's finding that the claimant sustained a compensable injury. In support of this assertion, the respondent points to discrepancies between the ALJ's factual findings in her original and supplemental orders, and argues that the ALJ's revised findings remove any factual bases for finding that the claimant sustained a compensable injury. We disagree. We look to the ALJ's findings in her supplemental order to determine whether the findings of fact are supported by the record. The ALJ issued a supplemental order to address "matters raised" in the respondent's original petition to review and makes findings of fact "necessary to support such order." See § 8-43-301(5), C.R.S. 2007; Carter v. Homestake Enterprises, Inc., W.C. No. 3-919-581 (January 13, 1992) (petition to review supplemental order may address "matters," as opposed to "particular errors and objections" governing review of original order). Supplemental orders, in turn, are reviewable by the panel, including the findings of fact contained in the supplemental order. Section 8-43-301(6), C.R.S. 2007; see also, Gaskins v. Golden Automotive Group, LLC, W.C. No. 4-374-591 (August 6, 1999) (findings of fact contained in supplemental order control over findings in summary order).
As the respondent indicates, the record contains evidence that could support a determination that the claimant did not sustain a compensable injury. However, the question of whether the claimant met her 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).
We must therefore uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. 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). Thus, the scope of our review is "exceedingly narrow." Id.
The ALJ found that both the claimant's testimony and medical records established that the claimant sustained a herniated disc due to her work injury. The ALJ specifically referred to the claimant's medical appointment with Dr. Davis. Supplemental Order at 2 (unpaginated), ¶ 6. Dr. Davis's report dated October 30, 2006, indicates that the claimant sustained a work-related herniated disc. Exhibit 10 at 22. A corresponding MRI further supports the finding of a bulging or herniated disc. Exhibit 9 at 19. The ALJ expressly credited Dr. Matazzaro's report dated September 19, 2006, which relates the claimant's pain symptoms to her work injury. Supplemental Order at 3 (unpaginated), ¶ 8; Exhibit 8 at 15.
The ALJ also found the claimant's testimony to be persuasive. Supplemental Order at 2 (unpaginated), ¶ 1, and at 3 (unpaginated), ¶ 7. The claimant explained that she experienced aching in her left leg the morning after participating in the race at work. Tr. at 14. She indicated that she had not experienced similar pain prior to that time. Tr. at 14. The claimant described having pain in her leg and hip and described how the pain worsened over time. Tr. at 14-15. 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. 2000). In our opinion those extreme circumstances do not exist here.
Furthermore, proof of causation regarding an accidental injury and resulting disability is not limited to credible medical evidence, but may be established by lay testimony. Savio House v. Dennis, 665 P.2d 141, 142-43 (Colo.App. 1983). The ALJ credited the claimant's testimony that she was injured at work. The claimant's testimony supports the ALJ's finding of a compensable injury. Furthermore, lay testimony, if credited, is sufficient to establish that the injury was the cause of the claimant's disability and consequent wage loss. See Lymburn v. Symbios Logic, 952 P.2d 831, 833-34 (Colo.App. 1997) (award of temporary total disability benefits not dependent on medical evidence of work restrictions; claimant's testimony and physician's notes supported corresponding award). We are not at liberty to reweigh the evidence and substitute our judgment for that of the ALJ. See City of Loveland Police Dep't v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006), citing Bodaghi v. Department of Natural Resources, 995 P.2d 288, 303 (Colo. 2000) (reciting standard of review and supreme court's admonishment against reviewing court "parsing through the record and testimony . . . and making . . . own findings of fact"). We find no basis for disturbing the ALJ's determination that the claimant sustained a compensable injury.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated November 1, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
DORA CATES, SHERIDAN, CO, (Claimant)
HYATT CORPORATION, DENVER, CO, (Employer)
GALLAGHER BASSETT SERVICES, C/O: JENNIFER GREEN, ENGLEWOOD, CO, (Insurer)
LAW OFFICE OF OTOOLE SBARBARO PC, Attn: JOHN A SBARBARO ESQ, DENVER, CO, (For Claimant)
THOMAS POLLART MILLER LLC, Attn: BRAD MILLER ESQ, C/O: MARGARET KECK ESQ, GREENWOOD VILLAGE, CO, (For Respondents)