W.C. No. 4-370-404Industrial Claim Appeals Office.
January 25, 1999
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. We affirm.
The claimant alleged that he suffered an injury to his right knee on January 8, 1998, while pushing heavy gas piping with his foot in the course and scope of his employment as a plumber. Following a hearing on July 15, 1998, the ALJ determined the claimant failed to prove a compensable injury. Therefore, the ALJ denied the claim for benefits.
On review, the claimant contends the ALJ erroneously admitted evidence of the employer’s suspicion that the claimant fabricated a prior workers’ compensation claim. The claimant argues the evidence is irrelevant, highly prejudicial, and inadmissible under C.R.E. 404. We are not persuaded there was any reversible error.
The claimant recognizes that the ALJ did not make any specific findings of fact concerning the disputed evidence. See also Summary Order dated August 5, 1998. The claimant asserts that the order was drafted by the respondents, and contends that the respondents deliberately excluded any reference to the prior workers’ compensation claim because the ALJ’s consideration of the evidence is reversible error. However, the claimant contends that the ALJ implicitly relied upon the disputed evidence.
The respondents contend that the ALJ’s error, if any, in admitting evidence concerning the prior workers’ compensation claim is harmless. We agree with the respondents.
It is solely the ALJ’s prerogative to assess the probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Further, the ALJ is not required to make findings on evidence he did not consider determinative of the issues to be adjudicated. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). In the absence of a specific finding concerning the disputed evidence, we decline to presume that the ALJ relied on that evidence in making his decision.
We do not dispute the claimant’s assertion that the ALJ’s order is subject to a higher degree of scrutiny because it was drafted by the respondents. See Colorado-Ute Electric Assn. v. Scarlett, Colo. App. No. 88CA1055, September 14, 1989 (not selected for publication); Moncrief v. Windsor Health Care Center, W.C. No. 3-828-738 et. seq., (January 22, 1990). However, we perceive no irregularity or impropriety here. We presume the ALJ examined the findings and conclusions in the proposed order submitted by respondents’ counsel and adopted them as reflecting the basis for his summary order. Moreover, the ALJ’s findings of fact sufficiently articulate the basis for his decision.
The ALJ’s findings reveal that the ALJ was unpersuaded by the claimant’s testimony about the January 8 injury irrespective of the disputed evidence. The ALJ found that the claimant’s testimony concerning the alleged injury is inconsistent with the February 14, 1998 Worker’s Claim for Compensation and Dr Wyman’s January 22, 1998 medical report. The ALJ also found that the claimant’s testimony concerning the alleged January 8 accident was contradicted by the testimony of the employer’s witnesses, Brad Blake (Blake), Jim Campbell (Campbell), and Randy Scott (Scott). The claimant testified that he reported the knee injury to Blake and Campbell on January 8, 1998. The claimant’s claim for workers’ compensation states that the injury was not reported until January 9, 1998 (Tr. pp. 10, 23), and Campbell denied receiving an injury report on January 8. (Tr. p. 89). The claimant also testified that he discussed the injury with Blake again on January 9, 1998 (Tr. p. 12), but Blake denied being aware of the alleged injury until January 16, 1998. (Tr. p. 61). Dr. Wyman’s medical report also lists the date of injury as January 9, 1998, but the claimant admitted that he did not work on January 9. (Tr. p. 12). Further, the notice of claim lists Campbell and another employee as witnesses to the injury. However, at the hearing, the claimant admitted that he was alone and that there were no witnesses to the injury. (Tr. pp. 9, 19). Moreover, Scott testified that he overhead a conversation between the claimant and Blake on February 13, 1998, in which the claimant admitted that his right knee problems were due to a pre-existing condition and not a work-related injury on January 8. (Tr. p. 82). The ALJ resolved these conflicts in the evidence against the claimant, and was not persuaded that the claimant’s right knee problems are the result of a work-related injury.
Consequently, the claimant has not established that the outcome would have been different had the ALJ not allowed the respondents to present evidence concerning the prior workers’ compensation claim. Accordingly, even if we assume the ALJ erred in admitting the disputed evidence, the error is harmless and does not afford us grounds to disturb the ALJ’s order. Section 8-43-310, C.R.S. 1998; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded); Rice v. Boulder County, W.C. No. 3-986-730
(July 15, 1993).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 27, 1998 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
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. 1998.
Copies of this decision were mailed January 25, 1999
to the following parties:
Cliff Peter, PO Box 178, Dolores, CO 81323
Jim Campbell, Blake Tomberlin, 29168 Highway 160, Durango, CO 81301
Terry Stewart, Industrial Indemnity Fremont Compensation, 1471 Shoreline Drive, #200, Boise, ID 83720
Tracy J. Cross, Esq., Dawes Harriss, P.C., 572 E. Third Avenue, Durango, CO 81301 (For Claimant)
Eliot J. Wiener, Esq., Elaine T. Corey, Esq., Ritsema Lyon, P.C., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondents)
By: ____________