W.C. No. 4-442-486Industrial Claim Appeals Office.
March 22, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded temporary disability benefits and denied the respondents’ request for a 50 percent reduction of compensation under § 8-42-112(1)(b) (d), C.R.S. 2000. We affirm.
In February 1999, the employer hired the claimant to work as a finish blade operator. The claimant alleged a work-related back injury on October 11, 1999, while helping a coworker move a 100 pound asphalt cutter onto a pickup truck. As a result of the injury the claimant was medically restricted from returning to his regular employment. On May 17, 2000, the claimant was released to regular employment. It is undisputed the claimant suffered previous back injuries in 1985 and 1987, which required surgery. The claimant was still treating for the prior injuries as of October 11, 1999.
The ALJ explicitly recognized the claimant’s pre-existing back condition. However, the ALJ found that lifting the asphalt cutter aggravated the claimant’s pre-existing chronic low back pain, and that the aggravation was the proximate cause of the claimant’s subsequent temporary disability. Consequently, the ALJ awarded temporary total disability benefits for the period October 18, 1999 to May 17, 2000, less three days the claimant worked in April. Furthermore, the ALJ determined the respondents failed to prove grounds to impose a 50 percent reduction in compensation under either § 8-42-112(1)(b) or 8-42-112(1)(d).
I.
On review the respondents contend the ALJ’s finding of a compensable injury is not supported by the record because the claimant’s testimony of a work-related injury on October 11 is overwhelmingly rebutted by his medical history. We disagree.
It is well established that a preexisting condition or injury does not preclude the claimant from proving a compensable injury due to an occupational aggravation. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Pain is a typical symptom caused from the aggravation of a preexisting condition. Insofar as the pain triggers the claimant’s need for medical treatment, or subsequent disability, the claimant has suffered a compensable injury. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
The question of whether the claimant has proven a compensable aggravation is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence 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). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ’s credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Here, the claimant did not deny the previous back injuries or treatment. However, he testified that no medical impairment rating was assigned for the 1985 or 1987 injuries, and he stated that his condition sufficiently improved by 1993 that he was able to return to physical work. (Tr. pp. 11, 12). The claimant also stated that his pre-existing back condition did not prevent him from performing his regular job duties and working overtime prior to the October 11 incident. (Tr. May 18, 2000, p. 17; June 15, 2000 p. 58). However, following the October injury the claimant was medically precluded from performing his regular employment until May 2000. It follows that medical evidence of the claimant’s prior injuries and treatment is not inconsistent with the claimant’s testimony that he suffered a new injury on October 11. Under these circumstances, we cannot say the ALJ erred in crediting the claimant’s testimony. Halliburton Services v. Miller, supra.
II.
Next, the respondents contend the ALJ erred in refusing to impose penalties under 8-42-112. We disagree.
A.
Section 8-42-112(1)(b) provides that compensation shall be reduced by 50 percent where the injury “results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” To impose penalties under § 8-42-112(1)(b), the respondents must show that the claimant’s failure to obey the safety rule was the result of “willful” conduct. City of Las Animas v. Maupin, 804 P.2d 285
(Colo.App. 1990). The term “willful” means with “deliberate intent” as opposed to mere thoughtlessness, forgetfulness, or negligence. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).
The question of whether the respondents proved willfulness was one of fact for determination by the ALJ. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in record. Section 8-43-301(8), C.R.S. 2000.
The ALJ found there was a safety rule which required employees to “lift properly” by bending their legs to get close to the object, keeping their backs straight, and lifting by straightening their legs. (Finding of Fact 8). Implicitly crediting the claimant’s testimony the ALJ found the claimant did not intentionally violate the rule by performing an improper lift. The respondents’ arguments notwithstanding, we are not persuaded the evidence compels the conclusion the claimant’s violation of the rule was a conscious decision by the claimant. The claimant testified that he removed the asphalt cutter from a road grader. Then a coworker came up and began rolling it to a truck which was 15 feet from where the claimant removed it. The claimant stated that as he was “stepping forward” and “reached down” for the cutter his back went out. (Tr. June 15, 2000, p. 32). The claimant stated that in hind-sight it was a “mistake” to have tried to pick it up the way he did. “I had already picked up the entire weight of it up and set it down. I was over the load when I reached up to pick up to help [the coworker] I was off balance.” (Tr. June 15, 2000, p. 32). Based upon this testimony the ALJ could reasonably infer that the claimant’s safety rule violation was the result of mere thoughtlessness or negligence. Accordingly, we may not disturb the ALJ’s finding that the respondents failed to prove a “willful” violation of §8-42-112(1)(b).
B.
Section 8-42-112(1)(d), provides for a 50 percent reduction of compensation:
“Where the employee willfully misleads an employer concerning the employee’s physical ability to perform the job, and the employee is subsequently injured on the job as a result of the physical ability about which the employee willfully mislead the employer.”
The respondent-employer’s Application for Employment contained the question, “Have you had any injury or injuries on the job.” The claimant answered “yes,” and indicated he fell from crane boom 02-6-85,” was off work for 4 months and received no permanent disability. He also stated that he suffered chemical burns in October 1989 for which he was off work 6 weeks. However, the claimant did not list the 1987 industrial injury. The claimant also indicated he was taking Darovet and Soma 350 for “old age pains, muscle relaxer pain killer.”
The claimant denied trying to willfully hide any condition from the employer. (Tr. June 15, 2000, p. 57). He testified he “assumed one [of the injuries reported] would cover everything as far as low back injury,” and that he “didn’t think anything about” reporting the 1987 injury on the application. (Tr. June 15, 2000, pp. 50, 51). He added that the employer’s representative did not ask him about any of the information on the application. (Tr. June 15, 2000, p. 57). Consequently, the ALJ reasonably inferred the omission was not “willful.”
III.
Finally, the respondents contend that the electronic recording of the May 18 hearing was a denial of due process. They argue the transcript contains so may inaudible segments that the record is insufficient to permit appellate review. We disagree.
The May 18 hearing transcript consists of 39 pages. All but 5 pages of the transcript pertain to opening arguments and the claimant’s direct testimony. Cross-examination of the claimant began on page 30 and ended on page 36 when the respondents requested and were granted a continuance. Most of the “inaudible” notations in the transcript occurred during the claimant’s direct testimony. There are 12 “inaudible” notations in the transcript during the cross-examination. However, the respondents do not explain how they were prejudiced by the inaudible portions of the claimant’s testimony. See Goodwill Industries v. Industrial Claim Appeals Office, 862 P.2d 1042, 1046 (Colo.App. 1993).
In any case, we agree with the claimant that the May 18 cross-examination is cumulative of the claimant’s testimony at the June 15 hearing, and that the June 15 hearing contains substantial evidence to support the ALJ’s pertinent findings. The respondents do not dispute the completeness of the June 15 transcript. Under these circumstances, we are unable to conclude the inaudible portions of the May 18 transcript resulted in a denial of due process. Goodwill Industries v. Industrial Claim Appeals Office supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 16, 2000, 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 is commenced 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. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 22, 2001 to the following parties:
Donald R. Austin, 3440 Youngfield, #121, Wheat Ridge, CO 80033
James Howell, Safety Director, Asphalt Paving Co., 14802 W. 44th Ave., Golden, CO 80403
Great States Insurance Co., 6455 S. Yosemite, Englewood, CO 80111
Great States Insurance Co., Ginger Cook, Claims Management Specialist, HIH Insurance Company, P. O. Box 4143, Englewood, CO 80155-4143
John C. Bowes, Esq., 720 Kipling St., #201, Lakewood, CO 80215 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy