W.C. No. 4-247-941Industrial Claim Appeals Office.
October 5, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Kozelka (ALJ Kozelka) which ordered them to pay for examinations and medical treatment which the claimant received in October 1998. The respondents contend the ALJ’s pertinent findings of fact concerning causation are not supported by the evidence. We affirm.
Our Order of Remand dated September 28, 2000, contains a statement of the facts. That statement is incorporated in this order. We note that our order set aside ALJ Kozelka’s prior order because we could not ascertain the basis of a pertinent finding of fact. Consequently, we remanded the matter with directions for ALJ Kozelka to “reconsider the totality of the evidence, including the weight to be assigned the opinions of the medical experts, and enter a new order concerning the claimant’s entitlement to medical benefits.”
The principal issue to be determined by ALJ Kozelka was whether the claimant’s increasing back pain and consequent need for treatment in October 1998 were caused by the 1994 industrial injury, or by an intervening injury in October 19, 1996, when the claimant was employed at a pizza restaurant. In her order dated February 28, 2001, ALJ Kozelka found the claimant’s need for treatment was caused by the 1994 industrial injury, and ordered the respondents to pay for treatment rendered by Dr. Gromke, and for an MRI prescribed by Dr. Gromke. In so doing, the ALJ credited the claimant’s testimony that the 1994 industrial injury caused ongoing symptoms after he was placed at maximum medical improvement (MMI) in March 1996. (Findings of Fact 3 and 8). The ALJ also credited the opinion of Dr. Gromke that the claimant’s symptoms were caused by the 1994 injury. The ALJ explicitly discredited the opposing opinion of Dr. Price as expressed in her written report of April 25, 1999.
I.
On review, the respondents contend ALJ Kozelka’s finding that the claimant’s need for treatment was caused by the 1994 industrial injury rather than the alleged “intervening injury” of October 19, 1996, is not supported by substantial evidence. The respondents argue the ALJ erred in crediting the opinion of Dr. Gromke over that of Dr. Price, and that the claimant’s testimony was incredible as a matter of law. We reject these arguments.
The question of whether the claimant proved his need for medical treatment in 1998 was caused by the 1994 industrial injury rather than the alleged intervening event of October 19, 1996, was one of fact for determination by the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Because the issue is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, supra.
The respondents challenge ALJ Kozelka’s finding that on October 29, 1996, Dr. Clark reported the claimant did not sustain an injury when throwing a pizza. (Finding of Fact 6). However, we have reviewed Dr. Clark’s October 29 note and find that it fully supports the finding that Dr. Clark recorded: “onset throwing a pizza — no injury. Hx disc bulging in low back.” Although other inferences are possible, we may not substitute our judgment for that of the ALJ on this point.
We disagree with the respondents contention that ALJ Kozelka erred in relying on Dr. Gromke’s opinion concerning causation because he was unaware of the October 19, 1996 incident. The fact Dr. Gromke was unaware of the claimant’s full medical history went to the weight, not the admissibility of his opinion. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). This is not a case in which Dr. Gromke’s opinion was predicated on some assumed fact contrary to the facts actually established. See High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981). Further, we reject the respondents’ argument that ALJ Kozelka “speculated” that Dr. Gromke would not change his opinion if he knew about the October 19, 1996 incident. The ALJ merely observed there was no evidence that Dr. Gromke would change his opinion, and plausibly inferred from the record as a whole that he would not.
Neither was ALJ Kozelka compelled to credit the opinions of Dr. Price. ALJ Kozelka was unpersuaded by Dr. Price’s April 25 report because she found that Dr. Price’s opinion was couched in equivocating terminology, failed to recognize that Dr. Clark reported there was “no injury” in October 1996, and incorrectly characterized Dr. Clark’s treatment as intensive when, in fact, the claimant received only two treatments. Under these circumstances, we have no basis to interfere with ALJ Kozelka’s decision to discredit the opinion of Dr. Price.
Finally, the claimant’s testimony was not incredible as a matter of law. Testimony is not incredible as a matter of law unless it is rebutted by hard, certain evidence to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo.App. 1986). As a practical matter, this amounts to testimony which is in conflict with the laws of nature or fully established or conceded facts. Testimony is not incredible as a matter of law merely because it is biased, inconsistent, or contradicted by other evidence. See People v. Ramirez, ___ P.3d ___ (Colo.App. No. 99CA1973, February 15, 2001). As the ALJ found, the claimant plausibly explained any inconsistency between his testimony that his symptoms continued after reaching MMI, and the October 22, 1996 medical report stating the claimant was “doing well” over the past year. (Finding of Fact 8, Tr. February 25, 2000, pp. 21-24).
II.
The respondents next contend ALJ Kozelka denied them due process of law because she entered her order on remand before conducting another hearing which the claimant had requested, and before the respondents were allowed to take Dr. Price’s deposition. However, our Order of Remand did not cite any errors in the proceedings previously conducted by ALJ Kozelka, nor did it direct ALJ Kozelka to conduct additional evidentiary proceedings. To the contrary, we directed ALJ Kozelka to reconsider the existing evidence and enter a new order. Thus, ALJ Kozelka did not err by entering the order on remand without permitting additional proceedings. See Halliburton Services v. Miller, supra (court which enters order of remand is in the best position to determine the scope of the order).
Further, the respondents were not denied due process of law. To the contrary, the respondents were afforded a full evidentiary hearing which included the opportunity to examine or depose Dr. Price had they elected to do so. The failure to exercise available remedies does not amount to a denial of due process. See Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994).
III.
The respondents also contend the order of ALJ Martinez was not supported by the evidence, and that ALJ Martinez erred because he granted the claimant’s post hearing motion to exclude Dr. Price’s April 25, 1999 report. However, we perceive the alleged errors, if any, to be harmless. Our review of the record reveals the issue before ALJ Martinez and the issue before ALJ Kozelka was essentially same. The issue considered by both the ALJs was whether the claimant’s worsened condition in 1998, and the consequent need for treatment, were caused by the 1994 industrial injury or the alleged intervening injury of October 1996. We dismissed the respondents’ appeal from the order of ALJ Martinez because the order was not final. ALJ Kozelka reconsidered the causation issue and received additional evidence, including the disputed report of Dr. Price, and the issue was again resolved against the respondents. Consequently, because the respondents were afforded a full hearing before ALJ Kozelka, ALJ Kozelka entered new findings of fact and conclusions of law, and the respondents were allowed to submit the relevant evidence, they were not prejudiced by any findings or conclusions entered by ALJ Martinez.
IT IS THEREFORE ORDERED that ALJ Kozelka’s order dated February 28, 2001, 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. 2001. 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 October 5, 2001 to the following parties:
Robert E. Miller, 3306 S. Highland, Clifton, CO 81520
Harding Glass, 1 Logan Square, Philadelphia, PA 19103-6933
Legion Insurance Company, Amy Gerelick, Gallagher Bassett Services, Inc., 7925 E. Prentice Ave., #305, Englewood, CO 80111
Lauretta A. Martin Neff, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy