W.C. No. 4-290-728Industrial Claim Appeals Office.
June 24, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied and dismissed his claim for workers’ compensation benefits. The claimant contends that the ALJ erred in finding that he failed to prove a compensable injury. We disagree, and therefore, affirm.
The claimant alleged that he injured his low back at work on January 16, 1996, while replacing parts on a pickup truck. From highly conflicting evidence, the ALJ determined that claimant failed to sustain his burden to prove that he suffered a low back injury arising out of and in the course of his employment. In so doing, the ALJ found that the claimant was not a credible witness and resolved all factual conflicts against the claimant. Rather, the ALJ credited testimony that the claimant did not report a work-related injury to a co-worker, a supervisor or the initial treating physicians. The ALJ also found that the claimant has a long history of pre-existing back problems and was an active snowmobiler, and that either of these factors could be the cause of his need for treatment.
I.
On review, the claimant first contends that the ALJ erroneously allowed the respondents’ insurance adjuster, Evelyn Bonham (Bonham), to testify about a conversation with the claimant without requiring her to provide a copy of the “computer log” containing her notes of the conversation. In support, the claimant cites CRE 612, which provides that:
“If a witness uses a writing to refresh his memory for the purpose of testifying, either while testifying or before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing . . .”
Here, Bonham testified that she spoke to the claimant in March 1996, at which time the claimant reported that his back condition was not work related and that he did not intend to file a claim for workers’ compensation. (Tr. p. 119). At that point, claimant’s counsel objected to any further testimony from Bonham without seeing her “notes.” (Tr. p. 124).
The ALJ determined that Rule 612 was not applicable because the claimant did not testify that she reviewed the “computer log” to refresh her memory for the purpose of testifying. (Tr. p. 125). The ALJ’s determination is consistent with Bonham’s testimony that she reviewed the computer log before the hearing for the purpose of giving her attorney a verbatim statement of the conversation. (Tr. p. 131). However, she stated that she had a “relatively vivid memory” of her conversation with the claimant and that reviewing the computer log did not refresh her recollection of the conversation. (Tr. pp. 132-133, 139).
Further, the ALJ was not persuaded that the interests of justice required the computer log to be produced. (Tr. p. 136). Therefore, the ALJ overruled the claimant’s objection.
Because the ALJ’s authority under Rule 612 is discretionary, we may not disturb the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ruling “exceeds the bounds of reason.” 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).
The claimant argues that Bonham should have been required to produce her notes because her testimony was critical to the issue of causation. However, Bonham had already given testimony on that issue before the claimant made his objection. Further, at the hearing, the relief requested by the claimant was that “all [Bonham’s] testimony concerning those notes be stricken.” (Tr. p. 127). However, Bonham did not testify “concerning those notes,” except in response to the claimant’s objection.
Moreover, Bonham denied that she relied upon the computer log to refresh her memory that the claimant stated his back injury was not caused by his work. Under these circumstances, we cannot say that the ALJ’s refusal to compel the production of the computer log exceeds the bounds of reason. See People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (Colo 1973). Consequently, we may not disturb the ALJ’s ruling. Hall v. Home Furniture Co., supra.
Alternatively, the claimant argues that the respondents’ failure to produce the computer log was a violation of the claimant’s discovery request, and that pursuant to §8-43-207(1)(e), C.R.S. (1996 Cum. Supp) and C.R.C.P. 37(b)(2)(c), the ALJ should have precluded Bonham’s testimony as a sanction for the violation. Specifically, the claimant argues that he sent the respondents a set of Interrogatories on August 22, 1996. The claimant argues that the computer log should have been produced in response to Interrogatory 12 which requested the “identification of” and production of copies of “all accident reports and/or investigations that pertain to the accident.”
However, the claimant did not make this argument before the ALJ. Instead, the claimant argued that the respondents’ failure to produce the computer log violated Interrogatories 3 and 11. (Tr. pp. 127-128). Therefore, the claimant waived the argument that the respondents should be sanctioned for failing to comply with Interrogatory 12. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
Moreover, § 8-43-207(1)(e) only allows the ALJ to impose sanctions for a party’s “willful failure” to comply with permitted discovery. Insofar as Interrogatories 3 and 11 requested the production all memoranda of oral notices of a work-related injury or workers’ compensation claim, the ALJ was not persuaded that a memorialization of the claimant’s statement that his back injury was not work related, and that he did not intend to file a workers’ compensation claim fell within the documentation requested by Interrogatories 3 and 11. (Tr. p. 128). We agree, and therefore, reject the claimant’s argument that the ALJ was compelled to find that the respondents willfully violated a discovery request.
II.
Next, the claimant argues that even if he was not injured at work, he suffered a compensable aggravation of his injury between January 16, 1996 and May 21, 1996, when his physician removed him from work. The claimant also contends that the ALJ’s findings are insufficient to ascertain whether the ALJ found his disability to be the result of a non-industrial injury or a compensable aggravation caused by his work at the body shop. We disagree.
The ALJ is not held to a crystalline standard in articulating his findings of fact. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Furthermore, insofar as Dr. Maggiore opined that “to some degree” the claimant’s work at the body shop aggravated his pre-existing condition, the ALJ was not required to credit Dr. Maggiore’s opinion. (Maggiore depo. pp. 75, 78-79, 91); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness’ testimony); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (uncontroverted medical evidence not binding on the ALJ).
In his Summary Order dated November 6, 1996, the ALJ found that the claimant failed to prove that his back condition “is causally related to his employment activity.” Further, the ALJ’s Specific Findings of Fact reflect his determination that the claimant failed to prove by a preponderance of the evidence that his back condition was more likely due to a work-related injury or compensable aggravation of his pre-existing back problems than a natural consequence of his pre-existing back problems. (Conclusions of Law 2, 5). In so doing, the ALJ was persuaded by the opinions of Dr. Tice and Dr. Maggiore that the cause of the claimant’s back condition was unknown. (Findings of Fact 42, 45-48).
III.
The claimant also contends that some of the ALJ’s findings of fact are not supported by substantial evidence in the record, and argues that the ALJ’s remaining findings are insufficient to support the order. We disagree.
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). Accordingly, the issue on review is whether there is substantial evidence to support the ALJ’s findings, not whether the record contains some evidence which, if credited, might support a contrary determination.
Notwithstanding the evidence cited by the claimant, there is substantial evidence in the record to support the ALJ’s finding that “no specific traumatic incident is identified by Claimant as an alleged cause of his back problems.” (Finding of Fact 4). The claimant testified that there was no specific incident which caused his injury. Instead, he stated that the injury was caused by “just the cars and in general.” (Tr. p. 46). Further, Bonham stated that during her conversation with the claimant, he did not specify an incident that actually caused the injury. (Tr. p. 119).
Similarly, the claimant contests the ALJ’s finding that “the form does not identify a specific traumatic event” which claimant alleges caused his back pain. (Finding of Fact 37). The claimant contends that it is unclear what “form” the ALJ is referring to in Finding of Fact 37. However, it is obvious from the ALJ’s Finding of Fact 36 that Finding of Fact 37 pertains to the Preliminary Accident Report “form” signed by the claimant on March 23, 1996. Furthermore, Finding of Fact 37 is consistent with the March 23 form which alleges an injury on March 4, 1996 caused by “just the type of work.”
Next, the ALJ found that Dr. Hoffman’s notes of January 16, 1996 do not mention “pain going down Claimant’s legs.” (Finding of Fact). As argued by the claimant, Dr. Hoffman’s notes do refer to complaints of low back pain, apparently abbreviated as “LBP.” However, we reject the claimant’s contention that Dr. Hoffman’s reference to complaints of low back pain includes complaints of leg pain.
The ALJ also found that, “as of March 5, 1996, Dr. Maggiore did not have any reason to believe that Claimant’s back pain was on account of a work-related injury.” (Finding of Fact 20). This finding is consistent with Dr. Maggiore’s deposition testimony See (Maggiore depo. pp. 11-12). Even the testimony cited by the claimant supports the ALJ’s finding. See (Maggiore depo. pp. 12-13).
Similarly, Dr. Maggiore’s testimony supports the ALJ’s finding that “Dr. Maggiore could not testify whether or not the Claimant’s work at the body shop constituted a substantial permanent aggravation of the back condition.” (Finding of Fact 43). In response to the question of whether the claimant’s work at the body shop constituted a substantial permanent aggravation of his back problems, Dr. Maggiore stated “I can’t answer that.” (Maggiore depo. p. 54). Moreover, we note that Dr. Maggiore’s opinion that the claimant’s work aggravated his back injury, is not the equivalent of an opinion that the claimant suffered a “substantial, permanent aggravation.”
Nevertheless, we agree with the claimant that the record does not support the ALJ’s Finding of Fact 10. Contrary to the ALJ’s determination, the claimant’s wife did not testify that, “as of early and mid-January 1996, Claimant was complaining of pain going down his legs.” The claimant’s wife testified that the claimant was having back and leg pain in “mid-January of 1996.” (Tr. p. 74).
However, we are not persuaded that the ALJ’s erroneous finding undermines his order. The claimant does not dispute the ALJ’s finding that he “informed his co-employee, Mike Highfill, of the alleged back injury in early January. (Finding of Fact 12). Furthermore, the ALJ’s remaining findings are more than sufficient to support the ALJ’s determination that the claimant failed to sustain his burden to prove a compensable injury.
To the extent the claimant has made other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 24, 1997 to the following parties:
Fred Everett, P.O. Box 598, Carbondale, CO 81623
Professional Auto Body Frame, P.O. Box 1552, Glenwood Springs, CO 81602
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
J. Keith Killian, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
Scot Houska, Esq. Thomas Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: _______________________________