W.C. No. 4-193-243Industrial Claim Appeals Office.
April 30, 1996
FINAL ORDER
The respondents seek review of two orders of Administrative Law Judge Rumler (ALJ) which determined that the claimant sustained a compensable injury, and that the claim was not barred by the statute of limitations. We affirm.
In an order dated January 24, 1995, the ALJ found that the claimant, who was employed as a “courier and specimen processing clerk,” cut his hand on a “broken test tube of blood” in the spring of 1991, and the cut caused the claimant to become infected with the HIV virus. In support of this determination, the ALJ found that the claimant had a negative HIV test in 1988, and a positive HIV test in August 1991.
Much of the controversy at hearing surrounded an HIV test which the claimant testified that he underwent in the spring of 1991, and was allegedly negative. In this regard, the ALJ determined that the claimant’s allegations were supported by the testimony of his co-workers Donna Colley and Eunice Pecramala. Colley testified that in the spring of 1991 the claimant told her that he cut himself on a test tube of blood. Colley also testified that soon thereafter she and the claimant took each other’s blood “and sent it to Phoenix” for testing. Colley stated that the claimant’s test was negative. Moreover, Pecramala testified that in December 1993 the claimant asked her to locate the results of the negative HIV test.
In an order dated February 16, 1995, the ALJ rejected the respondents’ assertion that the claim was barred by the statute of limitations set forth in § 8-43-103(2), C.R.S. (1995 Cum. Supp.). In this regard, the ALJ found that the claimant filed a claim for benefits in December 1993 after developing AIDs symptoms in November 1993. Thus, the ALJ held that the claimant was not actually “injured” for purposes of the statute of limitations until he contracted the symptoms in November. Moreover, the ALJ stated the claimant had a “reasonable excuse” for not filing the claim until December 1993 because he did not sustain any disability until hospitalized in November. The ALJ concluded that the fact that the claimant’s “disability did not become apparent to either claimant or respondents, until November 1993, did not prejudice respondents.”
I.
On review, the respondents’ first argument is that there is insufficient evidence to support the ALJ’s determination that the claimant cut himself at work in the spring of 1991. Moreover, the respondents assert that, if the claimant did cut himself at that time, there is insufficient evidence to support the finding that the cut was the proximate cause of the claimant’s infection with the HIV virus. Specifically, the respondents argue that the claimant’s testimony was incredible as a matter of law, that the testimony of Colley and Pecramala should not have been considered, and that the medical evidence does not support the order. We reject these arguments.
As a general matter, the questions of whether the claimant sustained a work-related injury, and if so, whether it was the cause of his disability and need for treatment, are questions of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s finding that the claimant’s infection was caused by exposure to contaminated blood at work if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
In applying the substantial evidence test, we must defer to the ALJ’s resolutions of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996). The ALJ was free to believe all, part, or none of the testimony of any witness. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Further, the claimant was only required to present evidence sufficient to establish causation to a reasonable probability. Morrison v. Industrial Claim Appeals Office, 760 P.2d 664 (Colo.App. 1988). In so doing, the claimant was not required to present medical proof of causation, but to the extent such proof was presented it was for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents argue that the claimant’s testimony that he cut his finger in the spring of 1991 was incredible as a matter of law because the claimant was the only one who “witnessed” the cut. The respondents also cite numerous inconsistencies in the claimant’s testimony which they contend make reliance upon the claimant’s testimony improper. Moreover, the respondents point out that, during closing arguments, the ALJ indicated that the claimant’s testimony was not credible. We find no error.
Initially, we reject the respondents’ assertion that the ALJ found that the claimant’s testimony was totally incredible. First of all, the ALJ’s oral remarks do not constitute findings of fact. It is the ALJ’s written findings, not her oral statements, which are subject to our review Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987); Neoplan USA Corp. v. Industrial Commission, 721 P.2d 157 (Colo.App. 1986).
Moreover, we disagree with the respondents that the ALJ intended her comments concerning the claimant’s credibility to be considered “findings.” To the contrary, near the close of argument, the ALJ indicated that she had not made a decision, and might credit the claimant’s testimony on critical points if consistent with other evidence. (Tr. December 5, 1994, p. 140). Here, we understand the ALJ’s written order to be a determination that she believed the claimant’s testimony that he cut himself in the spring of 1991. That finding was not based solely on the claimant’s testimony, but upon corroborating testimony by Colley and Pecramala. Moreover, as the ALJ pointed out, the claimant’s testimony is consistent with medical evidence concerning the rate at which HIV tests become positive after infection.
It follows that we cannot say the claimant’s testimony was so rebutted by hard certain evidence that it is incredible as a matter of law. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Rather, this case presents one of sharply conflicting evidence which is subject to numerous interpretations and inferences. The fact that the claimant’s testimony was internally inconsistent on several points, and contradicted by other evidence, does not mandate the result argued for by the respondents. See May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The respondents next contend that the ALJ erred in relying on Colley’s testimony that the claimant told her he cut himself in the spring of 1991. The respondents assert that Colley’s testimony was not “competent” on this point. We reject this argument.
As the claimant argues, C.R.E. 801(d)(1)(B) provides that a statement is not hearsay if the declarant testifies at the trial, is subject to cross-examination concerning the statement, and the statement is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence.” A prior consistent statement, offered under these circumstances, constitutes “substantive non-hearsay evidence” in addition to rebutting the attack on credibility. See People v. Andrews, 729 P.2d 997 (Colo.App. 1986).
Here, it is apparent that the claimant offered Colley’s testimony to rebut the respondents’ implied charge that the claimant fabricated his testimony concerning the cut in order to conceal the true origin of the HIV infection and obtain workers’ compensation benefits. Colley’s testimony was certainly “competent” with regard to the fact that the claimant made the statement. Therefore, we see no error in the admission of Colley’s testimony.
We recognize that, at the time Colley testified the claimant had not yet testified and his credibility had not yet actually been attacked by an express or implied charge of recent fabrication. However, we consider this deviation from the ordinary sequence of testimony to constitute harmless error since it did not affect the respondents’ substantial rights. C.R.E. 103(a). The record amply demonstrates the respondents’ position that the claimant fabricated his testimony concerning the cut. Moreover, the ALJ was fully aware that the respondents intended to attack the claimant’s credibility. (Eg. Tr. Oct. 18, 1994, p. 70).
Neither are we persuaded by the respondents’ assertion that Colley’s testimony concerning the claimant’s prior statement was incredible. At least a portion of Colley’s testimony indicates that the conversation occurred in 1991, and she remembered this fact because it was shortly after her husband was diagnosed with HIV. (Tr. Oct. 18,. 1994, p. 126). The question of whether this testimony was credible in view of the other evidence in the case, as well certain contradictions in Colley’s testimony, was a matter for the ALJ, and we decline the respondents’ invitation to reassess the credibility issue.
The respondents also contend that the ALJ erred in relying on Pecramala’s testimony that the claimant asked her to help locate the negative HIV test. Again, as we understand the ALJ’s ruling, this statement was admitted for the purpose of rebutting the respondents’ contention that the claimant’s testimony was recently fabricated. Thus, the testimony was admissible under C.R.E. 801(d)(1)(B). (Tr. Oct. 18, 1994, p. 74). Further, the ALJ did not err in treating this evidence as “substantive” evidence corroborating Colley’s testimony. People v. Andrews, supra.
The respondents also argue that Dr. Lichtenstein’s testimony was speculative concerning whether or not the claimant was infected by HIV as a result of cutting himself at work. However, Lichtenstein’s testimony supports the conclusion that, if other risk factors are ruled out, the claimant probably sustained his infection as a result of cutting himself on the test tube. (Tr. Oct. 18, 1994, p. 18).
Moreover, the ALJ’s reliance on Lichtenstein’s testimony was primarily for the purpose of assessing the implications of the August 1991 test. The ALJ was most persuaded by Lichtenstein’s testimony that the 1991 test was consistent with infection in the spring of 1991.
It follows that we believe the evidence which the ALJ found credible and persuasive permits the inference that the claimant sustained the HIV infection as a result of the cut at work. Although the respondents presented a substantial amount of evidence to the contrary, we will not substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence.
II.
The respondents next contend that the ALJ erred in holding that the claim is not barred by the two year statute of limitations set forth in §8-43-103(2). The respondents argue that if the claimant cut himself in the spring of 1991, he must have recognized the probable compensable nature of his claim when he tested positive for the HIV virus in August 1991. Therefore, the respondents assert that the statute of limitations expired in August 1993, prior to the filing of the December 1993 claim. Moreover, the respondents assert that they were prejudiced by the delay in filing the claim, and therefore, the ALJ’s finding of reasonable excuse for the extension of the statute is contrary to law.
We do not consider whether the statute began to run in August 1991. Instead, we conclude that the ALJ’s finding of reasonable excuse was proper, and therefore, the statute was extended to at least December 1993.
The question of whether there was a “reasonable excuse” is a discretionary matter entrusted to the judgment of the ALJ. Therefore, we may not interfere with her determination unless there was fraud or an abuse of discretion. Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). An abuse is shown only if the decision is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, we cannot say the ALJ abused her discretion in determining that the claimant showed a reasonable excuse for the delay in filing the claim. As the ALJ found, the claimant was never disabled by AIDS and did not seek treatment for the disease prior to November 1993. Therefore, the claimant could reasonably conclude that filing a claim was superfluous until he actually needed treatment for his condition.
Moreover, we reject the respondents’ argument that they were “prejudiced” by the delay in filing the claim. The respondents assert that the prejudice results from the fact that the claimant did not report the accident immediately and give them the opportunity to test the broken test tubes for the presence of the HIV virus.
The respondents bore the burden of proof to establish prejudice. Moreover, prejudice cannot be presumed from the mere fact of delay in filing the claim, but must be shown to be actual. Colorado Fuel Iron Corp. v. Industrial Commission, 129 Colo. 287, 269 P.2d 696 (1954).
Here, the “prejudice” alleged by the respondents does not result from the claimant’s failure to file the claim within the two year period, but the claimant’s failure to report the accident at the time it occurred. Even if the claimant had known that he was entitled to file a workers’ compensation claim at the time of the cut in the spring of 1991, he was not obliged to file the claim for a period of two years. Had the claimant waited even six months, or a year, it seems unlikely that the respondents could have tested the vials. Therefore, we agree with the ALJ that there has been no showing of actual prejudice resulting from the failure to file the claim within two years.
Similarly, we fail to perceive how the respondents were prejudiced because they were not able to “test” the claimant for the presence of the HIV virus. The ALJ has found that the claimant tested positive for the HIV virus in August 1991. This is well before the expiration of the statute of limitations. Therefore, we fail to see how the delay in filing the claim affected the respondents’ rights.
III.
The respondents next contend that the ALJ erred in admitting a document reporting the results of the claimant’s 1988 HIV test. The respondents also assert that the ALJ erred in limiting the cross-examination of witness Fitch. We perceive no error.
Fitch testified that he was an LPN employed by “Denver Health and Hospitals.” He identified “Exhibit B” as a written document which stated that the claimant’s 1988 HIV test, performed by Denver Public Health, was negative. However, Fitch testified that this was not the original lab report, but merely a summary of the result which was released to the claimant. The respondents assert that the ALJ erred in admitting this document over their “best evidence” objection. However, we find no error.
Assuming, arguendo, that “Exhibit B” would ordinarily be excludable under the best evidence rule found at C.R.E. 1002, we conclude that the document was admissible under C.R.E. 1004(2). This rule provides that “other evidence” of the contents of a writing may be introduced if “no original can be obtained by any available judicial process or procedure.”
Here, Fitch indicated that he could not produce the actual contents of the Denver Public Health files because they are protected by confidentiality. (Tr. Oct. 18, 1994, p. 83). The respondents themselves conceded that the originals of the documents are protected by §25-4-1404(2), C.R.S. (1995 Cum. Supp.). Thus, we see no error in the admission of Exhibit B.
The respondents next contend that they were denied the opportunity to cross-examine Fitch concerning the documents contained in Denver’s file, including reports of other tests which the claimant might have undergone. We find no error.
First of all, Fitch testified that he did not even know if there were other “test results.” (Tr. Oct. 18, 1994, p. 82). Therefore, we fail to perceive how respondents would have benefited by cross-examining Fitch on this point. Further, § 25-4-1404(2) affords a statutory protection against disclosure of the material sought by the respondents. Therefore, under C.R.E. 501, the ALJ properly excluded inquiry into this area.
IV.
Respondents’ final contention is that remarks which the ALJ made during the course of the hearing, and principally during the course of closing argument, indicate that the ALJ was biased in favor of the claimant and against them. Specifically, they contend that the ALJ’s remarks show sympathy for the claimant as well as an undue inclination to reject the respondents’ evidence. We disagree.
A “presumption of integrity, honesty, and impartiality” rests with the ALJ when deciding cases. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516
(Colo.App. 1985). Under this rule the ALJ is presumed to be competent and unbiased until the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995).
Here, we have carefully reviewed the remarks on which the respondents rely to demonstrate the ALJ’s bias. However, these remarks generally occurred during closing arguments when the ALJ was attempting to elicit the positions of the parties concerning the inferences and conclusions to be drawn from the evidence. Taken in context, the ALJ’s remarks do not reflect favoritism towards the claimant, or an inclination to disregard the respondents’ evidence. To the contrary, the ALJ aggressively questione both attorneys concerning what the ALJ perceived to be weaknesses in both cases.
Moreover, the ALJ praised both counsel for excellent presentations on behalf of their respective clients. The ALJ’s expression of sympathy for the claimant was apparently made out of concern for his health, and was prefaced by the statement “I don’t know if I’m going to rule in your favor.”
It follows that we do not believe the ALJ exhibited any improper conduct or bias. To the contrary, the record contains voluminous testimony and exhibits, and the ALJ’s remarks to counsel demonstrate a thoughtful attempt to reach a just result in view of sharply contradictory evidence.
IT IS THEREFORE ORDERED that the ALJ’s orders dated January 24, 1995, and February 16, 1995, are affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed April 30, 1996 to the following parties:
Roger Allen, 3298 South Dahlia, Denver, CO 80222
Damon Clinical Laboratories, Inc., % Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Douglas P. Ruegsegger, Esq. Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290
(For the Respondents)
Penelope L. Clor, Esq. William Godsman, Esq., 7450 E. Progress Place, Englewood, CO 80111
(For the Claimant)
By: _________________________