W.C. No. 4-420-818Industrial Claim Appeals Office.
December 4, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied and dismissed his claim for workers’ compensation. We affirm.
The claimant alleged an injury occurring on December 29, 1994, while lifting blocks during his employment for his father at Del’s Masonry, Inc. The claimant testified that he reported the injury to his father and the foreman, Danny Wilson, on that date. (Tr. pp. 14, 16). However, the claimant’s father and Mr. Wilson denied that the claimant reported an injury on December 29. (Tr. pp. 41, 62).
On December 30, 1994, the claimant sought medical treatment from Dr. Leonard, who was on call for his personal physician. (Tr. p. 22). The claimant stated that he erroneously told Dr. Leonard, and a physical therapist, Anna Binder, that the injury occurred while moving a home entertainment center. (Tr. pp. 21, 22, 23). However, the claimant testified that following an altercation with his father concerning his wages, he decided not to protect his father and to report that the injury was work-related. (Tr. p. 24).
From conflicting evidence, the ALJ determined that the claimant failed to prove by a preponderance of the evidence that his injury arose out of the employment. In so doing, the ALJ explicitly recognized that the record contains some evidence which might support a contrary conclusion. However, the ALJ resolved the evidentiary conflicts against the claimant and found the testimony of the claimant’s father and Kathy Ewing more credible and persuasive than the testimony of the claimant and his wife. The ALJ also relied upon the medical records containing the initial history of the injury, which the ALJ found were “mutually consistent.” Further, the ALJ was persuaded by the initial history because it was given at a time when the claimant was pursuing health care to relieve the effects of the injury and not the litigation of this claim. Therefore, the ALJ denied and dismissed the claim.
On appeal, the claimant contends that there is not substantial evidence in the record to support the ALJ’s determination that the claimant failed prove a compensable injury. We disagree.
We have reviewed the ALJ’s findings of fact, his conclusions of law and the evidentiary record. The ALJ’s findings of fact are supported by the evidence he found credible and persuasive, and the existence of contrary evidence does not defeat the ALJ’s findings. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Therefore, we must uphold those findings. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Further, the ALJ’s findings support the denial of the claim for benefits City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo. App 1990), partially overruled on other grounds, 823 P.2d 709 (Colo. 1992).
Contrary to the claimant’s suggestion, the ALJ was not required to credit the claimant’s testimony that the injury occurred at work, even if the testimony was unrefuted. See See Levy v. Everson Plumbing Co., 171 Colo. 468, 468 P.2d 34 (1970); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). In any case, the ALJ could, and did interpret the testimony of the claimant’s father and Mr. Wilson as refuting the claimant’s assertion that he was injured at work. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995) (ALJ’s plausible inferences are binding on review). Similarly, the ALJ could infer from the testimony that the claimant admitted being involved in a fight with a co-employee, but denied being injured in the fight, that the injury did not arise out of the employment.
The claimant also contends that the evidence concerning the erroneous medical history he gave the initial providers was only admissible for purposes of his medical diagnosis, and was inadmissible for purposes of determining the cause of his condition. However, the record indicates that the claimant failed to raise this argument before the ALJ. (Tr. pp. 3, 22, 68-70). Therefore, it is not properly before us on appeal. Cf. C.R.E. 103(a)(1); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
Moreover, even if the claimant’s argument were properly before us, we would not be persuaded. Section 8-43-210, C.R.S. (1995 Cum. Supp.), provides that the Colorado Rules of Evidence (C.R.E.) are not applicable to the admissibility of medical records filed in a workers’ compensation proceeding. In addition, the evidence of claimant’s prior statements to Dr. Leonard and Ms. Binder is not hearsay. See C.R.E. 801(d)(1)-(2).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 26, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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,CO 80203, by filing a petition for review with the court, with serviceof a copy of the petition upon the Industrial Claim Appeals Office andall other 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 December 4, 1995 to the following parties:
Robert W. Ewing, 1221 Frances, #6, Longmont, CO 80501
Dels Masonry, Inc., P.O. Box 1551, Longmont, CO 80502-1551
California Indemnity Insurance Co., Attn: Kathleen M. Bebee, P.O. Box 6597, Englewood, CO 80155-6597
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302
(For the Claimant)
Mark H. Dumm, Esq., Bernard Woessner, Esq., 3900 E. Mexico, Ave., #1000, Denver, CO 80210
(For the Respondents)
BY: _______________________