W.C. No. 4-227-138Industrial Claim Appeals Office.
May 19, 2000
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge (Atencio), which denied and dismissed his claim for workers’ compensation benefits. We affirm.
The claimant was employed by the respondent as a logger. The claimant alleged a work-related back injury on August 29, 1994, when he was pinned by a tree. The claimant stated that as a result of the injury, he experienced significant numbness and tingling in his legs and feet and was unable to return to work.
The claimant’s ex-wife, Norma Wisor (Wisor) did not deny that the claimant was pinned by the tree on August 29. However she stated that the claimant did not complain of any pain or numbness associated with the incident and immediately returned to work. She testified that the claimant did not report any back pain until September 5, 1994, when claimant injured his back in a motel room. Wisor stated that the claimant was sitting on the end of a bed, with his legs bend over the edge. He pulled Wisor onto his lap and leaned back onto the bed, twisting to one side. Wisor testified that the claimant then screamed out in pain and said he hurt his back. On September 6, 1994, Wisor transported the claimant to the Huerfano Medical Center emergency room for treatment of a back injury. On September 13, 1994, the claimant was transferred to another hospital for additional treatment.
On highly conflicting evidence, the ALJ found the claimant failed to prove that his disability and subsequent need for medical treatment was caused by injuries sustained when he was pinned under a tree. In so doing, the ALJ credited Wisor’s testimony and rejected the contrary testimony of the claimant. Further, the ALJ found that the parties’ June 22, 1999, “Stipulation” of liability for the August 29 injury was based upon the claimant’s fraudulent misstatements. Therefore, the ALJ reopened the claim, and set aside as void ab initio, an October 3, 1995 award of workers’ compensation benefits. The claimant timely appealed.
On review, the claimant contends the ALJ’s order is a “rambling statement” which is not supported by the “relevant evidence.” The claimant contends that the medical evidence, and especially Dr. Johnson’s opinions compel a finding that his back problems are the result of the tree pinning incident and not the motel injury advanced by his ex-wife. Further, the claimant contends the ALJ erroneously credited Wisor’s testimony. In support, the claimant relies on evidence that Wisor has been convicted of drug trafficking and testified differently in a prior proceeding. We reject these arguments.
The ALJ’s order contains an exhaustive set of factual determinations in support of her conclusion that the claimant failed to prove a compensable injury. We must uphold the ALJ’s findings if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1999; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996). Under this standard we may not interfere with the ALJ’s credibility determinations unless the evidence she credited is so overwhelmingly rebutted by hard, certain evidence to the contrary that as a matter of law the ALJ would err in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Admittedly, Dr. Johnson attributed the claimant’s back problems to the August 29, injury reported by the claimant. However, Dr. Johnson admitted that if the claimant lied about the cause of his back injury, that would effect his opinion on causation. (Johnson depo. p. 32). Dr. Shaw was unable to render an opinion on the cause of the claimant’s back problems because the claimant and his ex-wife gave conflicting versions of the August 29, 1994 incident. Accordingly, he testified that causation was dependent on who was telling the truth. (Tr. September 10, 1998, p. 247).
The ALJ found with record support that the claimant and Wisor were the only persons present when the claimant was pinned by the tree and injured in the motel room. (Finding of Fact 24). However, their testimony was in direct conflict. Therefore, the ALJ’s assessment of the medical evidence required him to resolve the conflict between the testimony of the claimant and Wisor.
Within her sole prerogative as the fact finder, the ALJ resolved the conflict against the claimant. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). The claimant’s arguments notwithstanding, we perceive no basis to disturb the ALJ’s determination.
The ALJ was not required to credit the claimant’s testimony Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34
(1970). Citing numerous inconsistencies in the claimant’s statements to the treating physicians, misrepresentations to the respondent concerning his previous back injuries, and untruthful statements made under oath, the ALJ found the claimant has a habit or routine of “fraudulent and dishonest conduct.” Therefore, the ALJ found the claimant is not a credible witness. The ALJ’s determination is a reasonable inference from the record, and therefore, must be upheld.
In contrast, Wisor admitted she was previously convicted of drug trafficking. However, she denied that she was under the influence of any drugs at the time of the hearing. (Tr. September 10, 1998, p. 200). The sale of illicit drugs does not directly impeach the veracity of her testimony concerning the relevant events. Further, Wisor admitted, and the ALJ recognized that Wisor gave false testimony about the claimant’s injury in a related workers’ compensation hearing. However, the ALJ implicitly credited Wisor’s testimony that her false testimony was motivated by fear of physical retaliation from the claimant.
The ALJ also noted that Wisor’s testimony was corroborated by the testimony of attorney, Scott Warner. Under these circumstances, we decline to conclude as a matter of law that the ALJ erred in crediting Wisor’s testimony. Consequently, the ALJ reasonably inferred that the medical evidence, and particularly, Dr. Johnson’s opinions did not support the finding of a compensable injury.
We do not disagree with the claimant’s assertion that a compensable injury may be the result of an aggravation of a pre-existing condition. H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990). However, the ALJ was not persuaded the claimant established any causal connection between the industrial accident on August 29, 1994, and his subsequent back problems. Therefore, the ALJ’s order is not inconsistent with the applicable law.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 16, 1999, 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 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. 1999. 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 May 19, 2000
to the following parties:
Michael D. Quinton, 154 N. Juntura St., Burns, OR 97720
Gerald Lindsey, LTL Logging, Inc., P. O. Box 108, Whitebird, ID 83554
Blue Mountain Investments, 571 Stanislaus Ave., P. O. Box 1295, Angels Camp, CA 95222
Ronald C. Jaynes, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent LTL Logging, Inc.)
Brett L. Foster, Esq., Foster Foster L.L.C., 602 E. 300 South, Salt Lake City, UT 84102
Stephen D. Finlayson, 709 Ponderosa Village, Burns, OR 97720
BY A. Pendroy