Opinion
W.C. No. 4-750-869.
March 17, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated October 15, 2008, that found the claimant's claim for workers' compensation benefits was compensable and ordered payment of temporary total disability benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. On February 5, 2008, the claimant was assembling a barbecue grill that weighed between 100 to 150 pounds for the employer. While working on the grill the claimant did some heavy and awkward lifting. On February 9, 2008, the claimant showed a bulge on his abdomen to Dr. Pense at the employer's store. Dr. Pense told the claimant he had a hernia. The claimant was examined by Dr. Kinder who opined that the claimant's recent ventral hernia was likely related to lifting heavy objects while working as an assembler and stocker at the employer. The ALJ credited the opinion of Dr. Kinder and found the claimant's testimony was credible.
The ALJ concluded that the claimant had showed it more probably true than not that he sustained an injury arising out of and in the course of his employment with the employer. The ALJ ordered the respondents to pay benefits. The respondents bring this appeal contending that ALJ erred in relying on the opinion of Dr. Kinder and that there is not substantial evidence in the record to support the ALJ's finding of compensability.
We first note that the claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his 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).
The respondents acknowledge that because these issues are factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to 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 court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra.
I.
The respondents first contend the ALJ abused his discretion in relying on a letter from Dr. Kinder to find the claimant's testimony plausible and to determine that the claimant's hernia was likely related to lifting heavy objects for the employer. The respondents argue that Dr. Kinder specifically retracted his opinion regarding the causation of the claimant's hernia.
Dr. Kinder did express the opinion that the hernia was likely related to lifting heavy objects while working for the employer. This opinion was expressed in Dr. Kinder's May 28, 2008 correspondence. Exhibit 3 at 12. We agree that the ALJ did in part rely upon Dr. Kinder's opinion in reaching his conclusion that the claim was compensable. Finding § 15 at 3 Finding § 17 at 4. The respondents point out portions of Dr. Kinder's testimony at his deposition questioning the reliability of physician's opinion on the cause of the hernia. At Dr. Kinder's deposition, it was represented to the physician that a person from the human resource department of the employer would testify that the claimant told her that although he had a hernia he did not know whether it occurred at work or at home. In light of this representation, Dr. Kinder testified that he did not know how the claimant sustained the hernia. Kinder depo. at 15-16. The respondents, citing Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985), argue that the ALJ's reliance on an opinion of the physician who later changed that opinion is an abuse of discretion as a matter of law because it is beyond the bounds of reasons and because it is not supported by evidence.
However, as noted by the claimant, other portions of Dr. Kinder's deposition suggest that his opinion remained that the claimant's hernia was related to his work. Dr. Kinder was presented with other interviews and medical reports in which the claimant gave histories concerning the occurrence of the hernia that were similar to the history the claimant gave to Dr. Kinder. Kinder depo. at 15-26. Dr. Kinder stated that if the history given by the claimant was reliable then it was probable that the hernia was work-related. Kinder depo. at 27. To the extent that Dr. Kinder's testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
There was conflicting evidence before the ALJ. In his order the ALJ specifically found that the claimant did state at times that he was not certain how he developed the hernia, but overall his statements were fairly consistent that assembling a grill at the employer caused the hernia. We note that the reports from Dr. Pense and Dr. Womble contain a history that the claimant reported that his hernia occurred while he was putting together a barbecue grill at the employer. Exhibit 1 at 1; Exhibit 2 at 5-11. The ALJ found the claimant's testimony was credible and to the extent that there were conflicts between the claimant's testimony and the testimony of the respondents' witnesses the ALJ credited the claimant's testimony. The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
The ALJ found credible Dr. Kinder's opinion that it was probable that the hernia was work-related. 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 in the present case.
II.
The respondents next contend that the record does not contain substantial evidence to support the ALJ's finding that the claimant suffered an injury arising out of and in the course and scope of his employment. The claimant again argues that after Dr. Kinder issued his initial opinion regarding causation of the hernia he retracted that opinion when presented with additional facts. The claimant contends that the ALJ erred in relying on the initial opinion without considering Dr. Kinder's deposition testimony at which time the respondents contend the physician retracted his opinion.
We are not persuaded that the deposition testimony of Dr. Kinder compels a conclusion that he unconditionally retracted his opinion that the causation of the claimant's hernia was his work activities. As noted above, the deposition testimony of Dr. Kinder, read as a whole supports the conclusion that if the claimant's description of the events is accepted then it was probable that the hernia was work-related.
Nor are we persuaded that we should infer that the ALJ did not read the transcript of Dr. Kinder's deposition. 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, 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). Moreover, a presumption of integrity, honesty, and impartiality rests with the ALJ in the conduct of his official duties, and we must assume the ALJ acted accordingly unless the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985).
The respondents argue that no doctor testified to a cause of the claimant's hernia. However, the record does not compel that determination. As noted above, Dr. Kinder's testimony could be and was viewed by the ALJ as establishing a causal connection between the claimant's work and his hernia. In addition, although Dr. Womble testified that he could not be certain of the cause of the hernia, he also stated that given the chronology between lifting of the grill and the hernia it would be a common mechanism for a recurrence of a hernia. Womble depo. at 22-23 and 24.
Moreover, in determining the compensability of a claim, an ALJ is not bound by medical opinion, even if it is unrefuted. Industrial Commission v. Riley, 165 Colo. 586, 591, 441 P.2d 3, 5 (1968). In fact, even if the exact medical cause of the injury is "shrouded in mystery," the evidence is sufficient to establish compensability if the claimant presents circumstances indicating a reasonable probability that the injury resulted from or was precipitated by, the employment activities. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Davis v. Wal-Mart Stores, Inc., W. C. No. 4-266-748 (November 05, 1996). Here the ALJ was persuaded, with record support that the hernia resulted from the claimant's work activities. In such circumstances, we may not interfere with the ALJ's order.
III.
The respondents, after filing their petition to review, filed a Motion to Remand requesting that we remand the claim for the purpose of reopening the claim to present newly discovered evidence. We deny the motion.
The respondents citing Dee Enterprises v. Industrial Claim Appeals Office 89 P.3d 430 (Colo.App. 2003). rely on § 8-43-207(1)(j) C.R.S. 2008 which provides that upon good cause shown, an ALJ is empowered to adjourn any hearing to a later date for the taking of additional evidence. In Dee Enterprises v. Industrial Claim Appeals Office, supra, it was recognized that § 8-43-207(1)(j) authorizes an ALJ to accept posthearing depositions.
However, the ALJ entered the order here on October 15, 2008, following the September 16, 2008 hearing. The respondents filed a timely petition to review and the claimant's brief in opposition was filed on December 22, 2008. The respondents' motion to remand for the purpose of taking additional evidence is dated February 5, 2009 which was after the expiration of the thirty day time period for entering a supplemental order pursuant to § 8-43-301(4) C.R.S. 2008. This is not a case where the ALJ retained jurisdiction over the matter and could exercise his discretion in the conduct of evidentiary proceedings, including the decision to permit the taking of posthearing evidence. IPMC Transp. Co. v. Indus. Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Instead, the time for entry of a supplemental order had passed. Hillebrand Const. Co. v. Worf 780 P.2d 24 (Colo.App. 1989) (ALJ's authority to enter supplemental orders is not perpetual, and that an ALJ must enter a supplemental order within the designated thirty days or lose jurisdiction to do so).
The respondents' motion to remand was filed after the transmission of this case for our review on January 13, 2009. It may be that respondents possess newly discovered evidence which would justify reopening the matter. If that is the case, they may file a petition to reopen, based upon error or mistake, and make the requisite evidentiary showing. However, that possibility does not preclude us from proceeding to adjudicate the matter based upon the evidence as it existed at the time of the hearing. See Johnson v. United Drywall Painting, Inc., W.C. 3-991-353 (April 22, 1993); See also Ramirez v. Excel Corporation W. C No. 3-990-123 (October 26, 1995) (there is no statutory authority which permits us to stay an appeal pending resolution of a petition to reopen or to remand for litigation of a petition to reopen). Therefore, we deny the respondents' motion to remand.
IT IS THEREFORE ORDERED that the ALJ's order issued October 15, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________ Curt Kriksciun
____________________________ Thomas Schrant
JOHN STRANGE, CRAIG, CO, (Claimant), WAL-MART STORES, INC., Attn: PERSONNEL MANAGER, C/O: POLLY KENNEDY, CRAIG, CO, (Employer), AMERICAN HOME INSURANCE, Attn: LEAANDRA GAVELLAS, C/O: CMI, INC., BENTONVILLE, AR, (Insurer), WITHERS, SEIDMAN, RICE MUELLER, Attn: CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO, (For Claimant)
CLIFTON, MUELLER BOVARNICK, PC, Attn: JAMES R CLIFTON, ESQ., GRAND JUNCTION, CO, (For Respondents)