IN THE MATTER OF THE CLAIM OF JOSE GUTIERREZ, Claimant, v. TROY FORMING CONCRETE, INC., Employer, and WAUSAU INSURANCE COMPANY, Insurer, Respondents.

W.C. Nos. 4-723-662, 4-703-202 4-665-972.Industrial Claim Appeals Office.
November 12, 2009.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated May 15, 2009 that ordered the respondents to pay medical benefits and temporary total disability benefits. We affirm.

A hearing was held on the issues whether the claimant sustained a traumatic injury in May 2005, which was allegedly a compensable aggravation of a pre-existing back injury, and, if so, whether the claimant was entitled to medical benefits and to temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant was employed by the respondent employer as a construction foreman, and had sustained certain compensable injuries prior to the one that is the subject of this appeal. On May 30, 1995, the claimant injured his hand and fingers. On July 31, 1998, Dr. Hart evaluated the claimant, who reported to the doctor that he had a history of low back pain. On December 16, 1998 the claimant sustained a compensable injury when he fell eight feet. The claimant was diagnosed as having suffered a severe heel contusion and Dr. Orent, an independent medical examiner, stated that this incident was the cause of a compression fracture in the claimant’s low back. The claim resulting from this injury (W.C. No. 4-703-202) was dismissed as barred by the statute of limitations. The claimant sought further treatment on January 16, 1999, reporting continued pain in his foot and a possible cervical injury. On April 30, 2001, the claimant reported a shoulder injury; however, he did not pursue that claim further. The claimant sustained a lumbar strain on July 5, 2003 (W.C. No. 4-723-662). This claim was eventually dismissed as barred by the statute of

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limitations. The claimant did not seek any further treatment for his back until July 27, 2004, when he was seen by Dr. Kenigsberg. An MRI was performed, which revealed significant degenerative changes in the claimant’s back. He was treated with physical therapy in August and September 2004 and was discharged from treatment at that point.

The ALJ further found that the claimant’s condition remained stable until early May 2005, when he strained his back while lifting a window well that had become stuck in frozen ground at the employer’s shop. The claimant appreciated the seriousness of the injury on October 13, 2005, when Dr. Dhupar informed him that he needed back surgery. The claimant was seen by Dr. Hajek on September 15, 2005 for low back pain and Dr. Chung performed a second MRI on September 21, 2005. This MRI disclosed a “moderate diffuse disc bulge and prominent left lateral disc herniation.” The MRI report referred to a “free fragment” which, along with the disc herniation, the ALJ found was caused by the claimant’s injury while lifting the window well.

The claimant reported his May 2005 back injury to the employer in October, when Dr. Dhupar informed him of the need for surgery. At that time the claimant was referred to Dr. Anderson, who opined that the claimant’s injury was not work-related. On October 21, 2005 the employer offered the claimant modified work supervising crews. The claimant performed this work until he was terminated on January 19, 2006. The ALJ found that the claimant and his entire crew were terminated because the crew did not have a “good attitude” and the management believed that it would be preferable to discharge the entire group in order to “improve morale.” The hearing officer found that the claimant had not exercised control over the circumstances of his discharge and was not at fault for it. The ALJ therefore concluded that the claimant was not responsible for the period of unemployment following his discharge. He further found that the claimant continued to be unable to perform his regular job and therefore was temporarily disabled.

The ALJ also found that Dr. Dhupar performed surgery on the claimant’s back on October 26, 2005, in which he removed the disc fragment. The ALJ credited Dr. Gray, an independent medical examiner retained by the claimant. Dr. Gray opined that the claimant suffered an aggravation of his pre-existing disc disease, which progressed to a disc herniation caused by the work-related injury that occurred when the claimant lifted the window well. The ALJ rejected conflicting medical opinions.

The ALJ also found that Dr. Anderson, who had been designated by the respondent employer as the treating physician, opined that the claimant’s condition was not work-related and, additionally, did not take any steps to follow up with further treatment for the claimant’s condition. The ALJ found that Dr. Anderson’s actions amounted to a refusal to treat the claimant for non-medical reasons. However, the ALJ

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was unpersuaded that the insurer had been afforded a reasonable time within which to designate a doctor willing to perform the recommended surgery on the claimant.

Based upon his factual findings the ALJ concluded that the claimant sustained a compensable aggravation of his pre-existing condition. He ordered the respondents to pay for reasonable and necessary medical treatment; however, he excluded the cost of Dr. Dhupar’s surgery, reserving for future determination the question whether the respondents would have designated a surgeon willing to treat after Dr. Anderson declined to do so. The ALJ also ordered the respondents to pay temporary total disability benefits from the date of the claimant’s termination continuing until properly terminated pursuant to law.

I.
The respondents appealed and first argue that substantial evidence does not support the ALJ’s findings of evidentiary fact. We are unpersuaded by this argument.

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. 2009. 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). Therefore, 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).

In support of their argument the respondents recite and summarize the evidence favorable to their position and that they contend compels the conclusion that the claimant did not sustain a compensable aggravation of his pre-existing condition. They describe at great length the testimony supporting their position, including the inconsistencies in the

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claimant’s testimony and the other circumstances suggesting that the claimant did not sustain a compensable injury while lifting the window well on the job. The respondents explain in detail the argument in favor of dismissal of the claim, and treat in that explanation the lay testimony, the medical testimony and the interplay between the two.

Nonetheless, the respondents’ argument is essentially tantamount to a request that we reweigh the factual record and reach inferences and factual findings different from those entered by the ALJ. We have no authority to do so. As noted previously, we may not substitute our judgment by reweighing the evidence in order to reach inferences different from those the ALJ drew from the evidence See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624, 626 (Colo. App. 1997) (ALJ’s prerogative to evaluate evidence “extends to resolving the inconsistencies in a particular witness’s testimony”). And our review to determine whether substantial evidence exists supporting the ALJ’s factual findings is conducted without regard to the existence of contrary evidence Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result); Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact finder, is charged with resolving conflicts in expert testimony). It is indisputable that had the ALJ reached a contrary result the record contains ample evidence that would have supported that result. However, the evidence that would have supported the ALJ’s contrary result does not compel the conclusion that the ALJ was required to dismiss this claim. Essentially, the respondents’ argument is that the factual record permitted only the single conclusion that the claim must be dismissed. However, the evidence was conflicting and the ALJ could determine its probative value and resolve those conflicts in the manner he thought best.

The ALJ’s factual findings are supported by the claimant’s testimony and the expert opinions of Dr. Gray. Therefore, we are bound by those findings on our review of the order. Further, we note that the ALJ is not required to articulate the basis for his credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987). Rather, the ALJ’s credibility determinations must merely be sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991). However, here the ALJ explained in considerable detail the basis for his credibility determinations and his weighing of the probative value of the conflicting evidence. Thus the ALJ recognized the inconsistencies and conflicts in the evidence pointed out by the respondents. However, the ALJ explained the factors persuading him that the opinions of Dr. Gray were credible. Although, as the respondents have argued, circumstances exist that would have permitted the ALJ to deny the claim, the ALJ’s inferences relying upon Dr. Gray’s opinions were reasonable ones from this factual record. His opinions constitute substantial evidence supporting the ALJ’s dispositive factual findings. Further,

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in concluding that the claimant sustained a compensable aggravation of his pre-existing condition, the ALJ applied the correct legal standard and we perceive no reversible error in this respect.

II.
The respondents also argue that the ALJ erred in concluding that the claimant was not responsible for his discharge from employment and was therefore entitled to temporary total disability benefits. Again, we perceive no reversible error in this respect.

The respondents rely upon the “termination statutes” for support for their argument that the claimant is not entitled to temporary total disability benefits. The termination statutes provide that a claimant is barred receiving temporary total disability benefits if he was responsible for his termination from employment. Sections 8-42-105(4), C.R.S. 2009, and 8-42-103(1)(g), C.R.S. 2009 (the termination statutes), contain identical language stating that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held that the term “responsible” reintroduced into the Workers’ Compensation Act the concept of “fault” applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of “fault” as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context “fault” requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995) opinion after remand 908 P.2d 1185 (Colo. App. 1985). That determination must be based upon an examination of the totality of circumstances Id.

The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, as with the previous factual determinations in this case, we must uphold the ALJ’s findings in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Again, this standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).

The dispositive issue then, in determining whether the claimant was at fault for his discharge is whether he committed some volitional act or exercised a degree of control

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over the circumstances of his termination. In support of their argument that the ALJ erred in awarding temporary total disability benefits, the respondents point to the testimony of Michael Lynn, the employer’s owner, and note that the ALJ’s order is inconsistent with that testimony. However, again, the ALJ was not compelled to credit that testimony and the mere existence in the record of evidence from which the ALJ could have reached a different result does not afford the basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, supra. Rather, the dispositive issues are whether the ALJ’s findings of fact are supported by substantial evidence and whether they, in turn, support the conclusion under the applicable law that the claimant was not responsible for his termination.

Here, the ALJ’s findings are supported by substantial evidence. As previously noted, the ALJ found that the employer believed that the claimant’s entire crew had a poor “attitude” and that their treatment of the office staff was unsatisfactory. On this basis the employer determined that the entire crew would be discharged, including the claimant, notwithstanding that he had been considered for a supervisory position even after his injury and resulting surgery. Although the claimant testified that he was not given a reason for his discharge, tr. at 38, the ALJ’s factual findings are supported by the testimony of the owner of the employer. Thus, Lynn testified that in 2001 he was considering the claimant for the position of “superintendent,” which required the claimant to manage a number of work crews. Tr. (4/27/09) at 44. The claimant did not take that position, Lynn further testified, because “if they didn’t feel that they wanted that job or wanted that responsibility of that job, we didn’t want to keep continuing to force the responsibility onto them.” Tr. (4/27/09) at 44-45. However, he continued to perform the job of a foreman, even following his surgery. Tr. (4/27/09) at 45. And, Lynn further testified that even following his scheduled surgery the employer wished to see his duties expand to that of a superintendent overseeing the work of more than one crew. Tr. (4/27/09) at 47-48. Lynn agreed with claimant’s counsel characterization that even after his back surgery “he continued to have a fine mind for supervision and construction.” Tr. (4/27/09) at 50. Lynn explained that the claimant and his entire crew were discharged because of “the attitude” that they exhibited, including occasions on which “his whole crew” at times “chew[ed] out the girls in the office.” Tr. (4/27/09) at 51.

It was a reasonable inference from this factual record that the claimant was discharged because of the collective behavior of the crew for which he was responsible. Although Lynn testified to a number of specific reasons for the claimant’s discharge, the ALJ was not compelled to credit that testimony. Contrary to the respondents’ apparent argument, the ALJ was not compelled to accept the parts of the Lynn’s testimony detailing the specific instances of the claimant’s allegedly unsatisfactory job performance. Instead, the ALJ could make the reasonable inference from Lynn’s testimony that the claimant was dismissed in a move to eliminate the whole crew that the

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employer perceived as impairing the efficient operation of the business. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (the ALJ was free to rely on those portions of a witness’s testimony he found persuasive and to reject other portions). Given the ALJ’s factual findings, which we have determined are supported by substantial evidence and reasonable inferences from the record, the ALJ could conclude that the claimant’s discharge was not the product of his volitional conduct and that he did not exercise sufficient control over the circumstances of the discharge. We perceive no reversible error in this regard and therefore affirm the order.

Finally, we note that the respondents also argue that the ALJ erred in ordering the respondents to provide medical benefits. However, that argument depends upon the respondents’ related argument that the ALJ erred in determining that the claimant sustained a compensable injury. Since we have affirmed that portion of the order, it follows that we reject the respondents’ argument with regard to the medical benefits ordered.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 2009, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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JOSE GUTIERREZ, MILLIKEN, CO, (Claimant).

TROY FORMING CONCRETE, INC., AURORA, CO, (Employer).

WAUSAU INSURANCE COMPANY, Attn: KIMBERLY M TRAVIS, IRVING, TX, (Insurer).

RING ASSOCIATES, PC, Attn: JESS PEREZ, ESQ., C, FORT COLLINS, CO, (For Claimant).

LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G. KROLL, ESQ., DENVER, CO, (For Respondents).

HALL EVANS, Attn: MEGAN COULTER, ESQ./DOUGLAS J KOTAREK, ESQ., DENVER, CO, (Other Party).

CLIFTON, MUELLER BOVARNCK, PC, Attn: ROYCE W MUELLER, ESQ., DENVER, CO, (Other Party 2).

EMPLOYERS COMPENSATION INSURANCE COMPANY, ATTN: LIBBY HOOD, BOISE, ID (Other Party 3).

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