W.C. No. 4-233-587Industrial Claim Appeals Office.
May 8, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant suffered a back injury arising out of and in the course of his employment and awarded benefits. We affirm.
From highly conflicting evidence the ALJ determined that the claimant suffered a compensable aggravation of his pre-existing back problems on November 4, 1994. The ALJ determined that the injury resulted from the cumulative effects of repetitive lifting and rolling of heavy molds required by the claimant’s employment. In so finding the ALJ expressly determined that the claimant’s non-industrial hunting and roofing activities neither caused or contributed to the November 4 injury.
The ALJ also determined that the claimant reported the injury to the employer on November 7, 1994, and that the employer did not designate a physician to treat the injury. Consequently, the ALJ determined that the physician selected by the claimant, Dr. Dewell, was authorized to treat the injury, and therefore, ordered the respondents to pay for the treatment provided by Dr. Dewell and his referrals.
I.
On review the respondents first contend that the ALJ erred in allowing the claimant to testify over their objection. We disagree.
As argued by the respondents, the Rules of Procedure, Part VIII(A)(6), Code Colo. Reg. 1101-3 at 22 (1995), provide that:
“[A] party may not produce a witness at a formal hearing who has not been listed in the application or response, or added by agreement or order, except to present rebuttal testimony or upon approval of the administrative law judge for good cause shown.”
The ALJ has wide discretion in determining whether there is good cause to permit the late endorsement of a witness. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Because the ALJ’s determination is discretionary, we may not disturb the ALJ’s determination to allow the claimant’s testimony unless it “exceeds the bounds of reason.” See 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).
Here, it is undisputed that the claimant did not list himself as a witness on his Application for Hearing. Nor did the claimant obtain an order or agreement to add himself to the list of endorsed witnesses.
However, the ALJ implicitly found good cause for allowing the claimant’s testimony. (Tr. p. 5). We cannot say that this determination exceeds the bounds of reason in view of the facts that the central issue before the ALJ was whether the claimant’s medical problems are the result of a work related injury or a non-work-related activity, and the statement by claimant’s counsel that the claimant could not proceed if he were not allowed to testify. Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987) (in determining whether good cause exists to allow the presentation of evidence the ALJ may consider whether the evidence is “outcome determinative”).
Furthermore, the respondents did not ask for a continuance or at any time indicate that they were unable to proceed with the hearing. Therefore, the respondents have not established that they were prejudiced by the ALJ’s determination to allow the claimant’s testimony. See Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
II.
Next, the respondents contend that there is not substantial evidence to support the ALJ’s finding of a causal connection between the claimant’s medical problems and his employment. In support, the respondents cite the fact that the claimant suffered from pre-existing back problems, and contend that the claimant engaged in hazardous activities outside of employment which aggravated his condition. The respondents also contend that the claimant fabricated the work-related injury. We reject this argument.
The question of whether the claimant’s disability and need for medical treatment is the proximate result of a work-related injury is a factual question for resolution by the ALJ. City Market v. Industrial Claim Appeals Office, 800 P.2d 1335 (Colo.App. 1990). Accordingly, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
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). Further, where the evidence is subject to conflicting inferences, we are bound by the ALJ’s resolution of the conflicts and plausible inferences the ALJ drew from the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Moreover, substantial evidence is not limited to medical evidence. Rather, the claimant’s testimony, if credited, may alone support the ALJ’s determination on the causation issue. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony constituted substantial evidence that his employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
Here, the record contains highly conflicting evidence concerning the cause of the claimant’s disability. The ALJ resolved the conflicts in the claimant’s favor based upon his determination to credit the claimant’s testimony. Christie v. Coors Transportation, ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992) (ALJ’s credibility determinations articulate the basis for the ALJ’s resolution of conflicts in the evidence).
Notwithstanding the respondents’ arguments, there is substantial evidence in the claimant’s testimony that neither his pre-existing condition, nor hunting and roofing activities, prompted him to seek medical treatment immediately prior to November 4, 1994. The claimant also testified that these factors did not preclude him from performing his regular work prior to November 4, 1994. Therefore, the claimant’s testimony supports the ALJ’s finding that these factors did not cause or contribute to the claimant’s November 4 injury. The ALJ’s finding is buttressed by Dr. Dewell’s opinion that the claimant sustained a work-related injury from the aggravation of the pre-existing condition.
Furthermore, the record amply supports a finding that the claimant’s repetitive lifting and rolling of heavy molds is a “peculiar risk” associated with the claimant’s employment. Therefore, insofar as the ALJ determined that the claimant suffered an injury in the nature of an occupational disease, the record does not compel a finding that the claimant’s injury resulted from a hazard to which the claimant was “equally exposed outside of the employment.” Section 8-40-201(14), C.R.S. (1995 Cum. Supp.); Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
The respondents’ further arguments on this issue have been considered and are not persuasive.
III.
Similarly, the ALJ’s determination that the employer waived its right to select the authorized treating physician is based upon her determination to credit the claimant’s testimony. Although the respondents are obviously dissatisfied with the ALJ’s credibility determinations, we cannot say that the claimant’s testimony is rebutted by such hard, certain evidence as to render the ALJ’s determination to credit the claimant’s testimony error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 10, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 8, 1996 to the following parties:
Henry L. Young, 3503 Calderwood Pl., Colorado Springs, CO 80918
Svedala Industries, Inc., 621 S. Sierra Madre St., Colorado Springs, CO 80903-4021
Zurich Insurance Co., 7007 College Blvd., Ste. 400, Overland Park, KS 66211
Richard E. Falcone, Esq., 3510 Galley Rd., #110, Colorado Springs, CO 80909 (For the Claimant)
Patti J. Ragland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
BY: _______________________