Opinion
W.C. No. 4-740-886.
October 23, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated May 14, 2008, that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The claimant testified that he injured his back while moving tree trunks for the employer on November 6, 2007. The ALJ found the claimant's testimony concerning the mechanism of the injury lacked credibility and was inherently contradictory and unreliable. The ALJ credited the testimony of the employer witnesses that the claimant appeared uninjured and fully capable of performing his work on November 6, 2007 and November 7, 2007. The ALJ concluded that the claimant failed to prove his claim by a preponderance of the evidence and denied and dismissed the claim.
On appeal, the claimant contends that the ALJ abused his discretion in ruling that the claimant failed to establish that he suffered a compensable work injury on November 6, 2007. The claimant points out that the claimant's work duties were quite physical and that the owner of the employer conceded that the tree trunks varied significantly in terms of length, width and weight. The claimant argues that the claimant testified in substantial detail about how the accident occurred and a coworker testified to the events surrounding the accident in a manner consistent with the claimant's description. The claimant further notes portions of the medical record, which supports the claim for benefits. We are not persuaded to disturb the ALJ's order.
The ALJ, with record support, made the following pertinent findings of fact relevant to his compensability determination. The employer operates a firewood business. Tr. at 46. The employer cuts the logs to firewood-sized pieces, splits them, and bundles them for sale. Tr. at 46. The claimant began working for the employer on October 31, 2007 carrying 16-inch logs to a hydraulic splitter and then throwing the split pieces in the back of a truck. Tr. at 8-9, 46. The claimant and the coworker worked on Wednesday October 31, Thursday, November 1, and Friday, November 2, 2007. The claimant and the coworker took the weekend off. The claimant could not come into work on Monday, November 5, 2007. Tr. at 40. The claimant and the coworker returned to work on November 6th and 7th. Tr. at 8-9, 11-12. On November 6, 2007, the coworker asked the employer if he carried insurance and the owner said he carried the requisite workers' compensation insurance. Tr. at 27, 50. On November 7, 2007 around 3:00 p.m., the claimant reported that he injured his lower back while working for the employer on November 6, 2007. Tr. at 54. The owner scheduled an appointment for the claimant that afternoon with Dr. Brogmus. Tr. at 55. The claimant testified that he went to Dr. Brogmus's office. Tr. at 12. However, at the doctor's office he was told to come back the next day because the doctor had already gone. Tr. at 18. In contrast, the owner testified that the office of Dr. Brogmus called him that evening saying the claimant failed to appear for the appointment. Tr. at 56. The claimant testified at one time that he was carrying a tree trunk by himself to move it to the side and felt a tearing sensation in his back. Tr. at 9-10. However, the claimant at another point stated that he and the coworker were each lifting opposite ends of the same log when he was injured. Tr. at 15-16; Exhibit 6 at 30. The coworker in contrast to the claimant testified that he was not helping the claimant lift a log, but that the claimant was lifting a big log by himself. Tr. at 25, 33-34. The owner testified that the description of the size and weight of the log the claimant stated he and the coworker were allegedly attempting to lift would require super-human strength and defies common sense. Tr. at 54, 59. The logs are too heavy for a person to lift and the employer instead uses a front-end loader or other machinery to lift and move the logs. Tr. at 43. The claimant testified that he used a chain saw to cut some of the logs, but the owner stated that he would not allow the claimant to use the chain saw. Tr. at 9, 49, 54, 58. The coworker's testimony was consistent with the owner's on the issue of use of the chain saw. Tr. at 32. The employer's yard supervisor and the owner testified that they observed the claimant working on November 6th and 7th and was fully able to perform his work without appearing in any pain. Tr. at 41, 52-53. The ALJ found the testimony of the employer witness was more credible than the claimant's testimony.
The claimant had the burden to prove that his alleged disability was proximately caused by an injury or occupational disease 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). 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 ALJ's findings of fact are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). In our opinion, the ALJ's findings are 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).
In his brief, the claimant has directed our attention to evidence in the record supporting his claim. This includes the claimant's testimony, testimony from a coworker and medical reports. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
The claimant argues it is "interesting and persuasive" that the respondents authorized medical treatment up to the time of the hearing. We note that it has generally been held that payment of medical services is not in itself an admission of liability. This is based on the sound public policy that carriers should be allowed to make voluntary payments without running the risk of being held to have made an irrevocable admission of liability. 7 Larson, Workers' Compensation Law, § 127.04(3). In addition, the Colorado Rules of Evidence generally govern workers' compensation proceedings. Section 8-43-210, C.R.S. 2008. C.R.E. 409 provides that evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. In our view, the ALJ did not err in failing to be persuaded by evidence that the respondents authorized medical treatment. See Ashburn v. La Plata School District 9R, W.C. No. 3-062-779 (May 04, 2007). We therefore, perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued May 14, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________ John D. Baird
________________ Thomas Schrant
ZOTERO ZARATE, 1507 8TH STREET, LOVELAND, CO, 80537 (Claimant)
SILVER PEAKS ENTERPRISES, INC., 3724 W EISENHOWER, LOVELAND, CO, 80537 (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ, 7501 E LOWRY BLVD, DENVER, CO, 80230 (Insurer)
RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ, 2550 STOVER ST, BUILDING C, FT COLLINS, CO, 80525 (For Claimant)
RITSEMA LYON, Attn: DOUGLAS L STRATTON, ESQ., 2629 REDWING RD., SUITE 330, FT COLLINS, CO, 80526 (For Respondents)