Opinion
W.C. No. 4-659-477.
August 4, 2006.
FINAL ORDER
The respondents seek review of an order dated February 15, 2006, of Administrative Law Judge Cain (ALJ) that concluded that the claim was compensable, that ordered them to pay temporary total disability (TTD) benefits and that recognized a doctor secured by the claimant as an authorized treating physician. We affirm.
The ALJ conducted a hearing on several issues including whether the claimant sustained a compensable industrial injury, his entitlement to TTD benefits, and whether the claimant could select an authorized treating physician. The ALJ's findings of fact pertinent to this appeal are summarized as follows. The claimant worked as a journeyman sheet metal worker. On July 15, 2005, he arrived late to work and advised his supervisor that he was involved in a motor vehicle accident and, also, that his back hurt. However, the claimant had lied about being involved in a motor vehicle accident, and records from his insurance and from the Department of Motor Vehicles showed no evidence of such an accident. The claimant made this false statement because he believed his job might be jeopardized if he was late for work without an excuse. Nonetheless, the supervisor assigned the claimant to sealing ductwork, which was considered to be light duty. The claimant subsequently sealed ductwork for two and one-half days, which required him to work in confined areas in a crouched position.
According to the claimant, on July 20, 2005, he was sore in his neck and back area, and felt a tear in his back after lifting angle iron. (The ALJ's order, at page 2, paragraph 7, refers to "July 20, 2001"; however, the reference to 2001 appears to be a typographical error.) He also experienced numbness in his right arm and neck. The claimant reported the lifting incident to his supervisor and, also, to another agent of the employer named Italiano. The next day, the claimant complained to his supervisor about having difficulty sleeping because of neck pain and he asked about seeing a doctor.
The claimant continued to work regular duty after July 21, 2005, but with increasing back pain. At the time of the hearing the claimant had not worked since August 12, 2005, at which time he reported having severe back pain and difficulty standing and walking. The same day, he asked Italiano to see a physician and they agreed that he would wait until August 15, 2005, to see the doctor. The claimant was laid off from work on August 12, 2005.
Dr. Holthouser, the employer's designated treating physician, examined the claimant on August 15, 2005. The claimant told the doctor that he had been in a motor vehicle accident, but was not injured. He also described his soreness after working in a crouched position and described his lifting incident. The claimant stated under oath that he mentioned the motor vehicle accident to the doctor because he believed he might return to work on light duty if found to be injured. Dr. Holthouser could not say that the claimant had suffered a work-related injury in light of the history reported by the claimant. He therefore reported that no treatment would be provided and discharged the claimant from his care. However, the doctor later testified that, if there was no motor vehicle accident, the claimant's physical condition, which involved muscle spasms, was to a reasonable degree of medical probability related to crouching or lifting at work. In that case, he would have provided the claimant with treatment and restrictions.
The claimant was later seen by Dr. Donner, to whom the claimant was referred by his attorney. The claimant denied being involved in a motor vehicle accident and described injuring his back on July 20, 2005, while at work. Dr. Donner opined that the claimant's condition was related to this injury as reported by the claimant. The ALJ found it was "more probably true than not" that the claimant sustained a work-related injury on July 20, 2005. The ALJ rejected the contention that the claimant manufactured a work-related injury. Based on these findings, the ALJ concluded that the claimant was entitled to TTD benefits starting on August 13, 2005. He also determined that Dr. Holthouser declined to treat the claimant due to non-medical reasons and, therefore, concluded that the claimant could select Dr. Donner as his authorized treating physician.
We understand the respondents to be arguing that further proceedings are required in order to determine whether the claimant "knowingly and willfully" made a false representation concerning his condition that would affect "the outcome of the hearing." Brief in Support of Petition to Review at 4 (unpaginated). It does not appear that this particular argument was advanced before the ALJ, either in the respondents' response to the application for hearing, in any prehearing pleading or order, or during the discussion held regarding the issues for hearing at the commencement of the hearing. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). However, although the issue of fraud was not noticed or apparently tried at the hearing, it is the case that the respondents' position statement filed after the hearing concentrates largely on the claimant's misrepresentations about the motor vehicle accident. Under these circumstances we will address the respondents' contentions on appeal.
The respondents cite the case of Artcraft Sign Co. v. McGrath, 679 P.2d 1103 (Colo.App. 1983), in support of their position. We note that Artcraft Sign. Co. was reversed by the Colorado Supreme Court in Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). However, the Court observed that admissions of liability could be withdrawn, even retroactively, when the claimant made fraudulent misstatements concerning his or her injury. Kraus, 710 P.2d at 481, citing Vargo v. Industrial Comm'n, 626 P.2d 1164 (Colo.App. 1981). In Vargo, the Colorado Court of Appeals affirmed a referee's order declaring an admission of liability void ab initio because it was filed in reliance on the claimant's materially false information about his injury. In any event, we find this line of decisions to be inapposite to the case at hand.
This case does not concern the filing of an admission of liability in reliance on a claimant's misrepresentations. Instead, the ALJ made detailed findings concerning the claimant's story about a motor vehicle accident and how it related to whether the claimant sustained a compensable injury in need of medical care. The ALJ made specific findings to the effect that the claimant concocted the story about a motor vehicle accident in order to provide him with an excuse for his tardiness to work, and that the claimant persisted in that story when examined by Dr. Holthouser because he hoped to be rehired. The ALJ expressly rejected the contention that the claimant conceived of the motor vehicle accident in order to receive compensation. Under these circumstances, we decline the respondents' invitation to order the ALJ "to conduct further hearings to determine whether claimant `knowingly and willfully' made a false representation. . . ." Brief in Support of Petition to Review at 4 (unpaginated).
We are otherwise unpersuaded that the ALJ erred. 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. 2005. 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. 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).
Here, the ALJ's order was supported by substantial evidence. The ALJ found that Dr. Holthouser opined that, absent a motor vehicle accident, the claimant's condition was probably related to work activities. The compensability of the claimant's injuries is also supported by Dr. Donner's opinion. The ALJ's determination that the claimant met his burden to prove a compensable injury is supported by substantial evidence and is, therefore, binding on appeal. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998); Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). See, e.g., Dr. Holthouser Depo. at 34-35; Exhibit 6. Similarly, the ALJ's determination that Dr. Holthouser elected not to treat the claimant due to non-medical reasons is supported by the ALJ's findings. See, e.g., Exhibit 7.
Under 8-43-301(8), we are precluded from disturbing the ALJ's order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. Here, we perceive no basis on which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated February 15, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Trent Fogle, Loveland, CO, Vicki Shields, US Engineering, Loveland, CO, Valerie Burke, Zurich NA, Kansas City, MO, Bob L. Ring, Esq., Fort Collins, CO, (For Claimant).
Ricky Benjamin, Esq., Denver, CO, (For Respondents).