Opinion
W.C. No. 4-535-097
April 7, 2003
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Jones (ALJ) which denied and dismissed the claim for workers' compensation benefits. We affirm.
The claimant alleged a work-related shoulder injury on March 2, 2002, during his employment as a licensed practical nurse. The claimant testified that as he bent over to remove medication from a drawer in a medication cart the drawer fell which caused a dislocation of his shoulder.
The ALJ found the claimant had a history of shoulder problems including a shoulder sprain in June 1999. The ALJ also found the claimant gave conflicting testimony, and reports concerning the March 2 industrial accident. Therefore, the ALJ determined the claimant was not a credible witness concerning the cause of his shoulder problems. Instead, the ALJ credited the testimony of the employer's witnesses to find the claimant failed to prove a compensable injury. Consequently, the ALJ dismissed the claim.
On review, the claimant contends the ALJ abused her discretion in failing to credit his testimony. The claimant also alleges one of the employer's witnesses committed perjury and another was engaged in a "cover-up." We reject these arguments.
To prove a compensable injury the claimant was required to prove that the condition for which he sought medical benefits arose "out of and in the course of" his employment. Section 8-41-301(1)(c), C.R.S. 2002; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). A compensable injury may result from the aggravation of a pre- existing condition. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
The question of whether the claimant has met his burden of proof 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 are bound by the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). In this regard the ALJ is not required to credit the claimant's testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Further, we may not set aside an ALJ's credibility determinations unless the testimony of a particular witness 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).
Here, the claimant testified that after the drawer fell, his supervisor, Paula Waldhoff (Waldhoff) began manipulating his shoulder which made the condition worse. (Tr. p. 17). Waldhoff denied manipulating the claimant's shoulder. (Tr. p. 61).
It was the ALJ's sole prerogative as the fact-finder, to resolve the conflict against the claimant. Under these circumstances, we cannot say the ALJ abused her discretion in refusing to credit the claimant's testimony concerning the cause of his shoulder pain.
Next, the claimant contends the ALJ erroneously admitted Respondents' Exhibit G, which is the independent medical examination (IME) of Dr. Bender. The claimant contends the IME was not truly "independent."
The Colorado Rules of Evidence require that before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. C.R.E. 103(a)(1); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Section 8-43-210, C.R.S. 2002 provides that the C.R.E. apply in workers' compensation proceedings.
At the commencement of the hearing the claimant's attorney raised no objection to the admission of the respondents' hearing exhibits A-I. (Tr. p. 8). Moreover, the specific basis of the claimant's objection was not apparent from the context. It follows the claimant waived his objection to the admission of Dr. Bender's report.
The claimant also contends he was denied due process because two witnesses he wanted to cross-examine did not attend the hearing. Therefore, he argues the claim was not ripe for adjudication. However, it was the claimant's burden to endorse the two individuals as witnesses for the hearing and request the ALJ issue subpoenas to secure their attendance. See § 8-43-207(1)(a), C.R.S. 2002. Furthermore, the record does not show the claimant requested a continuance to secure the attendance of additional witnesses. Thus, we conclude this argument was not preserved for appellate review. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996); Hart v. Industrial Claim Appeals Office, 914 P.2d 406 (Colo.App. 1995).
Similarly, the issues endorsed for adjudication by the ALJ did not include a request for penalties against the insurer and Dr. Bender, subrogation, or the application of § 8-43-303. (Tr. pp. 4-6). Accordingly, these issues are not properly before us on review.
Further, our authority to review the ALJ's order is limited by § 8-43-301(8), C.R.S. 2002. That statute precludes us from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law. Accordingly, insofar as the claimant argues that he received inadequate representation from his former attorney of record, and that the attorney failed to introduce essential evidence, we are without authority to address that issue. Rather, disputes between a client and his attorney involving the sufficiency of the representation are properly addressed to another forum.
Similarly, we have no authority to grant the claimant's request that we initiate an investigation against Dr. Bender and the insurance carrier concerning the release of his arrest records. The claimant's further arguments have been considered and are not persuasive.
Finally, we have reviewed the record and the ALJ's findings of fact. The ALJ's findings are sufficient to permit appellate review, the findings are supported by the record and the findings support the denial of benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated July 24, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 7, 2003 to the following parties:
Matthew McGinley, P. O. Box 2905, Telluride, CO 81435
Jenny Hinckle, Mariner Post Acute Network d/b/a Boulder Manor, 4685 E. Baseline Rd., Boulder, CO 80303
Dawn Manning, Mariner Post Acute Network, One Ravinia, #1500, Atlanta, GA 30346
American Home Assurance, c/o Rusty Pinckney, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado