W.C. No. 4-209-850Industrial Claim Appeals Office.
September 3, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ), insofar as it denied their request to suspend benefits because the claimant persisted in an “injurious practice.” We affirm.
The ALJ found that the claimant needed surgery for treatment of his industrial back injury. However, because of a possible exposure to hepatitis C, the treating physician referred the claimant to a second physician for testing to determine whether surgery was advisable.
The second physician declined to evaluate the claimant because the claimant was unable to pay, and the respondents did not offer to pay. The treating physician then referred the claimant to Denver General Hospital (DGH) to conduct the evaluation. The claimant made initial contact with DGH and was referred to a specific clinic, but did not go to the clinic because he believed DGH would charge him. (Tr. p. 11). The claimant then waited approximately six months to make further contact with DGH. (Tr. p. 12). At that time the claimant learned DGH would not charge him for the evaluation.
Under these circumstances, the ALJ declined to suspend claimant’s temporary disability benefits based on the allegation that the claimant engaged in an “injurious practice” by delaying the hepatitis C evaluation. The ALJ concluded that the “facts of this case do not support a finding” that the claimant’s conduct “would preclude the claimant from receiving benefits” under §8-43-404(3), C.R.S. (1996 Cum. Supp.).
On review, the respondents contend that the ALJ erred in declining to suspend the claimant’s benefits under § 8-43-404(3). Specifically, the respondents assert that the ALJ erred in drawing the “inference” that the claimant’s attempts to obtain the hepatitis C evaluation were “frustrated by obstacles not of the claimant’s doing.” We are not persuaded.
Section 8-43-404(3) provides that an ALJ has the “discretion to reduce or suspend the compensation” of a claimant who engages in an “injurious practice” tending to impair recovery. Because application of this section is discretionary, we must uphold the ALJ’s order unless it is beyond the bounds of reason. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An abuse of discretion occurs if the ALJ’s order is contrary to law or unsupported by substantial evidence in the record. Coates, Reid Waldron v. Vigil, supra.
Moreover, we must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we are bound by the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, we perceive no abuse of discretion in the ALJ’s refusal to suspend or reduce the claimant’s benefits. Although the claimant’s testimony was subject to conflicting inferences, he stated that he did not follow through with the DGH examination because he believed he would be required to pay for it, and had no funds to do so. (Tr. p. 11). We cannot say this testimony is incredible as a matter of law, particularly in view of the fact that one physician had already refused to evaluate the claimant, and in view of the fact the respondents were not willing to pay for the examination. The mere fact that the ALJ might have found the claimant’s testimony incredible affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Moreover, the ALJ’s order reflects his conclusion that the respondents themselves played a role in delaying the claimant’s treatment. Had they agreed to pay for the hepatitis C examination, or made arrangements at DGH, the ALJ might have concluded that the claimant engaged in an injurious practice by failing to participate. However, the respondents did not do so, and we cannot say the ALJ abused his discretion under the circumstances.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 3, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Dona Halsey
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed September 3, 1997 to the following parties:
Mark Harrison, 9825 E. Girard, Building 6 West, #409, Denver, CO 80231
Sport America Headwear, 4455 E. 46th Ave., Denver, CO 80216-3231
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Joel M. Pollack, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
Robert P. Koehler, Esq., 681 Grant St., Denver, CO 80203 (For the Claimant)
By: _______________________________