In the Matter of Claim of Montoya v. Kaiser-Hill Company, LLC, W.C. No. 4-633-835 (CO 4/26/2006), W.C. No. 4-633-835

• Decision Date: 26 April 2006
• Docket Number: W.C. No. 4-633-835
• Parties: IN THE MATTER OF THE CLAIM OF ANTHONY MONTOYA, Claimant, v. KAISER-HILL COMPANY, LLC, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.
• Court: Supreme Court of Colorado

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IN THE MATTER OF THE CLAIM OF ANTHONY MONTOYA, Claimant, v. KAISER-HILL COMPANY, LLC, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-633-835

Industrial Claim Appeals Office.

April 26, 2006.

FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated November 3, 2005 that ordered the respondents to pay medical benefits reasonably necessary to cure and relieve the effects of the claimant's compensable condition. We affirm.

A hearing was held on the issues of compensability and the claimant's entitlement to medical benefits, following which the ALJ entered factual findings that may be summarized as follows. On December 17, 2003 the claimant sustained a compensable injury when a piece of glass fell ten feet and struck his head and right shoulder. Although he had a preexisting problem with his right shoulder, the accident aggravated his condition and accelerated the need for medical treatment. On November 20, 2003, the claimant had previously sustained a compensable injury resulting in a diagnosis of epicondylitis. In June 2004 the employer referred the claimant to Dr. Brian to treat the epicondylitis resulting from the November 20, 2003 incident. In August 2004 Dr. Brian referred the claimant to a spine specialist, Douglas Wong, M.D. Dr. Wong referred the claimant for a cervical MRI, which was denied by the insurer on the ground that it was not necessitated by the December 17th injury. The ALJ expressly credited the report of Dr. Brian dated December 22, 2004, that states that the doctor detected objective findings consistent with the history of the December 17th injury, and that referred the claimant for further evaluation of the cervical spine by Dr. Wong. The ALJ found that the claimant's cervical problems were related to his injury of December 17th, which was compensable. Based upon his factual findings, the ALJ ordered the respondents to provide medical benefits, including the cervical MRI recommended by Dr. Wong.

The respondents appealed, and contend that the claimant failed to carry his burden of showing that he sustained a compensable injury on December 17, 2004 and that the ALJ's order awarding medical benefits is unsupported by the record. The respondents argue that there is simply a complete absence of any evidence in the record that the claimant sustained any injury to his cervical spine, and that the expert's opinions concerning such an injury uniformly refer to the November 20th incident rather than to the one that occurred on December 17th. Because there is no support in the record for the finding that the claimant injured his cervical spine on December 17th, they argue that the order awarding medical benefits must be set aside. We disagree and therefore affirm.

Where the claimant's entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). The ALJ's factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995).

Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Moreover, the ALJ's order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Furthermore, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers' compensation claims and it was the ALJ's sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda (Colo. App. No. 92CA1576, July 1, 1993) (not selected for publication). In resolving inconsistencies the ALJ may credit all, part or none of an expert's testimony, and the ALJ's failure to cite an expert's opinion inherently reflects that the ALJ did not find it persuasive. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Contrary to the respondents' argument, there is ample evidence from which the ALJ could have inferred that the claimant's December 17th injury caused the need for his medical treatment. The claimant testified that on December 17, 2003, a piece of glass weighing approximately 60 to 70 pounds fell on his head and shoulder, knocking him down. Tr. at 15-16. Although the pain and contusions on his shoulder resolved shortly thereafter, he developed numbness and tingling in his hands in January, and was referred to Dr. Brian. Tr. at 17, 19. Dr. Brian obtained x-rays of the claimant's cervical spine and then referred him to Dr. Wong for a further diagnostic workup. The claimant testified...