Opinion
W.C. No. 4-606-308.
December 15, 2005.
FINAL ORDER
The claimant seeks review of an order dated March 17, 2005, and a supplemental order dated August 30, 2005, both entered by Administrative Law Judge Jones(ALJ) which denied and dismissed the claimant's claim for workers' compensation benefits.
The claimant timely appealed the March 17, 2005 order. On August 30, 2005, the ALJ issued the supplemental order which denied the claim on similar grounds and included additional findings and conclusions concerning the applicable law. The claimant subsequently appealed the August 30, 2005 order.
The ALJ's pertinent findings of fact are as follows. On February 20, 2004, the claimant was involved in pouring and forming the foundation pillars for a bridge. The claimant's job was to pull a chain to release concrete from a hopper suspended from a crane into the pillar's form.
The claimant testified that he pulled the chain and the concrete came down at a rapid pace and spilled out of the pillar. The claimant dove backwards in order to avoid the falling concrete, and hit the middle of his back on wood at the base of the pillar. The ALJ found that the claimant's testimony about the mechanism of his injury was neither credible nor persuasive.
The project engineer testified that the claimant never fell during the incident nor was he struck by the falling cement. The project engineer saw the claimant run up and down an embankment yelling and cursing before getting into his vehicle and leaving the work site. Angelo Aguilar also testified that he was standing next to the claimant when the incident occurred and that he too had an unobstructed view of the claimant. He testified that the claimant never fell during the incident and never appeared to have injured his back. The crane operator testified that he operated the crane that guided the buckets of cement over to the pillar forms. He testified that the claimant released the cement too quickly and caused the cement to pour out.
The ALJ found the testimony of the project engineer, the crane operator and Aguilar was more credible than the claimant's testimony. The claimant went to see the designated provider and told the physician's assistant that "[A]ll of the cement came down on his head and shoulders. It knocked him backwards over a brace."
Based upon these findings, the ALJ determined that the weight of the credible evidence established that the claimant suffered no injury on February 20, 2004, and the claimant failed to sustain his burden of proof. The ALJ dismissed the claimant's claim for benefits.
On review the claimant argues that the ALJ's finding of fact are conclusory and are insufficient to allow meaningful appellate review. We disagree.
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 her 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).
Thus, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. However, the ALJ must make sufficient findings of fact and conclusions of law to indicate the basis of the order and support meaningful appellate review. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
The claimant argues that the ALJ erred in failing to address an MRI which the claimant argues objectively verifies that he has an injury at the same location where he claimed to have injured his cervical spine on a wood brace. However, the ALJ need not make findings of fact concerning evidence which is not found to be persuasive or dispositive of the issues in the case, and evidence not specifically addressed is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The MRI report does mention minimal bulging and spurring at the C3-4 and C5-6 levels of "questionable diagnostic significance" (exhibit 7 at pg. 2). The treating physician in discussing the MRI found that the "cervical spine is essentially normal" (exhibit 6 at pg. 3). Under these circumstances, we perceive no basis on which to interfere with the ALJ's finding.
The claimant's arguments essentially request that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the probative weight of the evidence. We have no authority to do so. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ's credibility determinations from conflicting evidence are binding 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).
The claimant also argues that the ALJ failed to resolve conflicts in the evidence. We disagree. The claimant points to what he considers inconsistencies and contradictory evidence in the record regarding whether there were two incidents in which concrete spilled or one, or which sonatube was being poured at the time of the injury. The claimant asserts the ALJ did not make any findings on these conflicts. However, 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, 1992) (no selected for publication). In weighing the evidence the ALJ may credit all, part or none of a witness's testimony, and the ALJ's failure to cite certain testimony 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).
The ALJ relied on the testimony of the crane operator, project engineer and Aguilar, who testified they saw the incident, the claimant never fell, and that the claimant was able to run up and down a steep embankment exhibiting no evidence of an injury. The ALJ resolved the essential conflict in the evidence and found these witnesses more credible than the claimant. This eye witness testimony is substantial evidence. We have reviewed the record and the ALJ's findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflict in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply 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).
The claimant next argues that holding a telephone hearing violated the claimant's rights to due process, equal protection, and fundamental fairness. We disagree.
We acknowledge that due process requires the parties be afforded an opportunity to confront adverse witnesses and present evidence in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the ALJ is vested with broad discretion to determine the course of an evidentiary hearing. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ's ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ's ruling exceeds the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The claimant did not object to the taking of additional testimony by telephone. Tr. (12/8/2004) at 134. Counsel for the claimant had the opportunity to cross examine the witnesses. In addition Rule of Procedure VIII(I)(7), 7 Code Colo. Reg. 1101-3, provides that, "Testimony presented by reports, records, deposition, or telephone is presumed to be equivalent of in person hearing testimony." Moreover, we note that the rules of civil procedure, which apply to administrative procedures to the extent they are not inconsistent with the enabling statute, see Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999), also authorize testimony to be taken by telephone. See C.R.C.P. 43(i). See also Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002) (holding of workers' compensation hearing through videoconferencing does not violate party's due process rights). Under these circumstances, we perceive no basis on which to interfere with the ALJ's conduct of the hearing.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated August 30, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Brent Robinson, Dove Creek, CO, Civil Constructors Inc. of Colorado, Glenwood Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).