W.C. Nos. 4-221-033 4-221-429Industrial Claim Appeals Office.
February 18, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ Harr) which determined that a claim for benefits (W.C. No. 4-221-429) was closed by a settlement agreement. The claimant argues the ALJ’s findings of fact are not supported by the evidence. We affirm.
This matter is before us for the second time. Our Order of Remand dated November 6, 2001, contains a statement of the facts, and that statement is incorporated herein. Suffice it to say that our order determined the settlement agreement approved by ALJ Harr on August 8, 1996, was ambiguous. Consequently, we remanded the matter for a hearing and the reception of extrinsic evidence to determine whether or not the settlement agreement applied only to W.C. No. 4-221-033 (claim for right hand injury sustained on January 14, 1994), or also applied to W.C. No. 4-221-429 (claim for lower extremity and back injuries sustained on May 21, 1994).
The ALJ conducted a hearing and received documentary evidence and testimony from the claimant and the claimant’s former attorney. The ALJ found the settlement agreement applied to both claims and, in effect, closed the claim for the May 21 injuries. See § 8-43-204(1), C.R.S. 2002. Consequently, the ALJ denied the claimant’s request for entry of a final order on the May 21 claim or, in the alternative, a new hearing on the May 21 claim.
In support of this determination, the ALJ found that the first report of injury mentioned both the January 14 and May 21 injuries. This in turn caused the insurer to assign a single insurance claim number to the separate injuries. Thereafter, the claimant sent correspondence to the insurer in which he referred to both injury dates, but used the single insurance number.
The ALJ further found that after ALJ Rumler orally dismissed the May 21 claim on June 25, 1996, claimant’s counsel agreed to cancellation of an additional hearing and did not request the entry of specific findings of fact so that the claimant could appeal the dismissal. Instead, the parties entered into a settlement. The ALJ inferred from this conduct that the settlement was intended to cover both claims.
On review, the claimant contends the ALJ’s findings of fact are not supported by the evidence and involve impermissible inferences. The claimant argues the overwhelming weight of the evidence, including the claimant’s testimony and that of the attorney, establishes the parties did not intend to settle the claim for the May 21 injuries. We disagree.
We previously determined the settlement agreement was ambiguous. Thus, the ALJ was entitled to receive extrinsic evidence to construe the document in accordance with the parties’ intentions. Under these circumstances, determination of the parties intent was a factual issue for the ALJ. Dorman v. Petrol Aspen, Inc., 914 P.2d 909 (Colo. 1996).
Because the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party. Further, we must defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Finally, the ALJ is not required to enter specific findings concerning evidence which is found to be unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
The claimant argues that ALJ Harr drew improper inferences from the claimant’s letters to the insurer which were written before and after the settlement. The claimant asserts these letters are irrelevant to the issue of the parties’ intentions at the time the settlement was entered into.
However, we consider this evidence probative of the issues before ALJ Harr. In light of the ambiguous nature of the settlement agreement (as described in our Order of Remand) it was relevant for ALJ Harr to determine the parties’ course of conduct in dealing with these separate injuries, both before and after the settlement. As the ALJ found, the claimant’s correspondence suggests the claimant treated the two dates of injury as involving a single claim, and used only one official claim number when referring to both injuries Further, the claimant’s correspondence contains the single insurance claim number employed by the insurer to refer to both dates of injury. (Findings of Fact 5 and 21).
We perceive no error in ALJ Harr’s findings of fact pertaining to the June 25, 1996, hearing before ALJ Rumler. ALJ Harr considered the hearing as it relates to the probability that the claim for the May 21 injuries was settled. ALJ Harr found that ALJ Rumler orally stated her intention to dismiss the claim for the May 21 injuries. Thereafter, the claimant did not request entry of specific findings of fact as a precursor to an appeal. Rather, the settlement was entered into and nothing else happened for a long period of time. One plausible inference from this set of facts is that the claimant and the attorney understood the settlement was intended to apply to the May 21 claim and it was pointless to request specific findings on a moot issue. (See Finding of Fact 20).
It is true, as the claimant argues, that his testimony and that of the attorney could have supported a different result. However, even unrebutted testimony need not be credited by the ALJ. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Here, it is implicit in the order that ALJ Harr discredited the testimony to the extent it was inconsistent with his findings concerning the actions of the claimant and the attorney. We may not substitute our judgment for that of the ALJ on these credibility issues.
To the extent the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that ALJ Harr’s order dated May 23, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced 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 thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe Street, Tower 3,Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________February 18, 2003
to the following parties:
Angelo Balachio, P.O. Box 440931, Aurora, CO 80044
Mu Zeta Housing Corporation, c/o Douglas P. Ruegsegger, Esq., and Ryan A. McManis, Esq., 600 17th St., #1600N, Denver, CO 80202
Legal Department, Pinnacol Assurance — Interagency Mail
Frank W. Woulf, Esq., 11100-B E. Mississippi Ave., #300, Aurora, CO 80012 (For Claimant)
Douglas P. Ruegsegger, Esq., and Ryan A. McManis, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
By: ______A. Hurtado_________________