W.C. No. 4-607-632.Industrial Claim Appeals Office.
September 9, 2005.
FINAL ORDER
The respondents seek review of an order dated April 18, 2005 of Administrative Law Judge Edwin L. Felter, Jr. (ALJ) that determined the claimant sustained a compensable injury, and ordered the respondents to pay medical and temporary disability benefits. The respondents contend that the ALJ erred by failing to resolve conflicts in the evidence and failing to enter sufficient findings regarding an alleged intervening event. We modify the order to reflect that the penalty imposed on the claimant is one day’s compensation for each day’s failure to report the injury, and otherwise affirm the order.
The ALJ’s pertinent findings of fact are as follows. On October 15, 2002, the claimant, who was employed by the Adams County Sheriff’s Department as a law enforcement officer, was at his home in Thornton when he saw a motor vehicle being driven by a juvenile recklessly and in a manner causing property damage (the ALJ’s findings of fact initially state that these events occurred on October 12, 2002. However, this discrepancy is addressed below). The claimant went outside, where a crowd had surrounded the vehicle, and the claimant ordered the driver to stop and to roll down the window. When the driver ignored these instructions, the claimant and several neighbors broke the windows and the claimant pulled the driver out of the vehicle through one of the windows. The claimant eventually wrestled the driver to the ground, where he subdued him using handcuffs. When the claimant arrived at work later that day, he described the incident to Sergeant Mark Singer and filled out a traffic accident report, but the ALJ found the claimant did not report being injured although he began to experience low back pain while on duty on October 15, 2002. The claimant testified that Singer did not permit him to file a workers’ compensation claim, presumably because the incident occurred while the claimant was off duty and at home. However, the ALJ found that this transpired “according to the claimant,” and as we understand the finding, the ALJ did not credit this portion of the claimant’s testimony.
On October 21, 2002, the claimant sought treatment from his personal physician, James Yeash, M.D. The claimant reported to Dr. Yeash, as well as to a referral, Jill Castro, M.D., that he had injured his back while picking up a trash can, which was consistent with the report of injury the claimant submitted on applications for short and long term disability benefits. Similarly, he stated to Kenneth Petine, M.D., who performed lumbar surgery on the claimant, that he injured his back while bending over and lifting a trash can. However, the claimant reported to David Wong, M.D., to whom he had been referred for a surgical consultation, that he injured himself making an arrest outside his home.
The ALJ expressly credited the testimony of the claimant’s neighbor, Thomas Larsen, that he witnessed the claimant grappling with the driver and that the claimant was having visible back pain the next day and in the days following the incident. Further, the ALJ noted Larsen’s testimony that shortly after that time, he helped the claimant with yard work and other chores because the claimant’s back pain hampered him from performing physical work. The ALJ found that the claimant had sustained a compensable injury, and ordered the respondents to pay medical benefits and temporary disability benefits subject to offsets for long and short term disability benefits. In addition, the ALJ imposed a penalty for the claimant’s failure to timely report the injury.
On appeal, the respondents argue that the ALJ erred in failing to make sufficient findings concerning whether the claimant sustained an intervening injury on October 19, 2002. They also argue that the ALJ’s finding that the injury occurred on October 12, 2002 is not supported by substantial evidence in the record. We are unpersuaded that either argument warrants setting aside the ALJ’s order.
The question of whether the claimant has proved a compensable injury is one of fact for resolution by the ALJ, and his findings must be upheld if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Section 8-43-301(8) permits us to set aside an ALJ’s order only on the grounds that the findings are insufficient to permit review, the findings are not supported by substantial evidence, the ALJ failed to resolve pertinent conflicts in the record, the findings do not support the order, or the order is inconsistent with applicable law. In reviewing an order, we must accept the ALJ’s credibility determinations and 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).
Here, contrary to the respondents’ argument, the ALJ’s findings are sufficient to disclose the basis for the order, and to permit our review. Moreover, the ALJ did resolve the conflict in the evidence concerning the cause of the claimant’s disability. He did so by expressly crediting the testimony of the claimant’s neighbor, Thomas Larsen, that on October 15, 2002, the claimant physically wrestled an individual out of a vehicle through the window and then forcibly subdued and handcuffed him. See Tr. pp. 10-12, 70-72. Moreover, despite reservations about the claimant’s credibility, the ALJ relied on Larsen’s testimony that the day following the incident the claimant “was bitterly, bitterly complaining about this perpetrator aggravating his back.” Tr. p. 74. Implicit in the ALJ’s findings is the determination that the incident that occurred on October 19th, in which the claimant picked up a trash can, was not an intervening accident severing the respondents’ liability.
This conclusion is further bolstered by the ALJ’s oral ruling at the close of the hearing. The argument that the claimant’s disability was caused by his picking up a trash can on October 19th was made both in the respondents’ “Statement of Position” and their closing argument (“The wastepaper basket incident caused this, not the — subduing the SUV driver?”). Tr. p. 113. The ALJ then stated on the record lengthy findings regarding precisely that question, which he characterized as “what caused what?” Tr. p. 122. During his discussion of that question, the ALJ found that the events of October 15th were the cause of the claimant’s disability, and the “trash incident” was merely the “natural progression” of the former. Tr. p. 125-26. Shortly thereafter, the ALJ reiterated that it was “too much of a stretch” to find that the incident with the reckless driver was not the cause of the injury, but that the “real incident” occurred when the claimant bent over to pick up the trash can. Tr. p. 127. Under these circumstances, the record is clear that the ALJ considered the respondents’ theory that an intervening event occurred, and rejected it as unpersuasive. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). The ALJ is not required to make written findings concerning every piece of evidence or to expressly discuss in the order every theory he finds unpersuasive Uptime Corp. v. Colorado Research Corp. 161 Colo. 87, 420 P.2d 232
(1966); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). In fact, the ALJ specifically stated in his written order that he rejected as unpersuasive evidence that was contrary to his express findings.
The respondents also argue that the finding that the claimant’s injury occurred on October 12, 2002 is unsupported by any evidence in the record and requires that the matter be remanded for entry of further findings of fact. However, we agree with the claimant’s argument that the reference to October 12th is a typographical or clerical error and does not warrant a remand. When read in its entirety, it is clear that the ALJ recognized that the claimant’s injury occurred on October 15th rather than on October 12th. The ALJ referred repeatedly to the “October 15, 2002 incident,” and to “the injury of October 15, 2002.” See Findings of Fact, ¶¶ 4, 6, 8, 15. Under these circumstances, we are persuaded that the typographical error referring to October 12th is harmless and should be disregarded. Section 8-43-310, C.R.S. 2005; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial should be disregarded).
The respondents also assert that the ALJ’s order penalizing the claimant “one-day’s compensation from October 16, 2002 through February 29, 2004,” should be corrected so that the penalty is one day’s compensation for each day’s failure to report the injury between October 16, 2002 and February 29, 2004. The claimant concedes this point and the ALJ’s order shall be corrected to clarify the scope of the penalty.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 18, 2005, is modified to reflect that the penalty is one day’s compensation for each day’s failure to report the injury, and the order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David D. Feeney, Lakewood, CO, Adams County Sheriff’s Department, Brighton, CO., Adams County, c/o Risk Management, Brighton, CO., Lissa Pierce, Jefferson County Schools Risk Mgmt., Golden, CO., Darrell E. Nulan, Esq., Denver, CO, (For Claimant).
Pamela Musgrave, Esq., Denver, CO, (For Respondents).