W.C. No. 4-374-287Industrial Claim Appeals Office.
March 28, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant sustained a compensable injury and awarded temporary disability and medical benefits. The respondents contend the evidence does not support the ALJ’s finding the claimant’s injury was caused by her employment. The respondents further contest the ALJ’s refusal to assess a penalty for the claimant’s failure timely to report the injury. We affirm the ALJ’s award of benefits, and remand the matter for entry of a new order concerning the assessment of penalties.
The claimant worked in the respondent-employer’s cash office. The work required the claimant to lift bags of money, squat, and kneel. The claimant testified that she felt a twinge of back discomfort in December 1997, and significant discomfort from February 23, 1998 to March 10, 1998. On March 10, the claimant testified that she over exerted herself while cleaning the disheveled cash office. Specifically, the claimant stated that she “over did it, stretching and climbing and doing the trash, and all of that.” (Tr. September 9, 1999, p. 7). Thereafter, the claimant experienced a sharp increase in back symptoms and was unable to return to work.
The claimant was diagnosed with a herniated disc at L2-3, and surgery was performed by Dr. Murk on April 11, 1998. Crediting the claimant’s testimony, as well as the expert opinions of Dr. Murk and Dr. Rook, the ALJ found the claimant’s employment caused the claimant’s back symptoms in early 1998, and that the claimant sustained an “aggravation of the symptoms while cleaning the cash office” on March 10. Thus, the ALJ awarded temporary disability benefits from March 11, 1998 through August 15, 1998, and reasonable and necessary medical expenses.
The ALJ denied the respondents’ request for imposition of a penalty for failure timely to report the injury to the employer in accordance with § 8-43-102(1)(a), C.R.S. 2000. In support, the ALJ found the claimant “realized her back injury was work-related” on March 17, 1998, and reported it to the employer on that date. The ALJ stated the claimant was “not aware of the compensable nature of her injuries until March 17, 1998.”
I.
On review, the respondents contend the ALJ’s finding that the claimant’s disability and need for treatment was caused by her employment is not supported by substantial evidence in the record. The respondents argue the claimant’s testimony was incredible as a matter of law because the claimant did not report the March 10 injury until March 17, the claimant did not report back pain to her co-employee on March 10, and the claimant gave inconsistent medical histories to various physicians. The respondents further contend the ALJ erroneously relied on the expert opinions of Dr. Murk and Dr. Rook. We perceive no error.
The claimant was required to prove the disability and need for treatment was proximately caused by an injury arising out of and in the course of employment. Section 8-41-301(1)(c), C.R.S. 2000. The question of whether the claimant carried this burden of proof is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inference she drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We may not interfere with the ALJ’s credibility determinations unless the disputed testimony is overwhelmingly refuted by such hard, certain evidence that the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
We also note that causation need not be proven by expert medical opinion. However, if expert opinion is offered, its weight and credibility are matters for determination by the ALJ Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). To the extent expert testimony contains inconsistencies, the ALJ may resolve them by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997). Further, the ALJ is under no obligation to make explicit findings of fact concerning evidence which she finds is not determinative of the issues. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The respondents’ assertion notwithstanding, the record does not contain the quantum or quality of evidence which would permit us to hold the claimant’s testimony was incredible as a matter of law. Although the claimant did not report the injury to the employer on March 10, she explained she did not do so because there was no specific incident which caused the injury, and she did not understand that workers’ compensation applied to her situation. Further, even though the claimant did not report a specific injury to her co-worker, the co-worker testified there was “something wrong” with the claimant and she “could have been in pain.” Thus, the claimant’s credibility was in dispute and the inference to be drawn from the evidence was a matter of fact for determination by the ALJ.
Neither can we say the claimant’s medical history, as it was related to various physicians, was so inconsistent that it rendered her testimony incredible as a matter of law. Indeed, on March 9, 1998, the claimant reported to Dr. Toon that she was experiencing “recurrent lower back pain and numbness in her quadriceps on the left side.” On March 14, 1998, Dr. Toon recorded a history of lower back pain for 5 weeks, which was getting worse. This history is largely consistent with Dr. Elgin’s office note of March 17, 1998, which states the claimant had been experiencing low back pain for “4-5 weeks which increased significantly one week ago.” Dr. Elgin’s March 17 note also states the claimant “indicates that on 3/10, she experienced increased pain in her low back while at work, which required her to present to the emergency department on 3/11.” (See also, Elgin Depo. pp. 5-6). Thus, although the medical records do contain some inconsistencies concerning the claimant’s medical history, these inconsistencies do not constitute the type of hard, certain evidence which would justify our interference with the ALJ’s resolution of the conflicts in the record.
Neither did the ALJ err in relying on the expert opinions of Dr. Murk and Dr. Rook. Dr. Murk testified the condition of the claimant’s disc was consistent with a recent herniation. Further, he opined the work activities described by the claimant certainly could cause a herniation. Dr. Rook opined the claimant’s history was consistent with a work-related injury, and declined to retract this opinion based on minor inconsistencies in the claimant’s medical history. Although these experts made certain statements which favored the respondents’ theory of the case, the ALJ implicitly resolved such inconsistencies in the claimant’s favor. Johnson v. Industrial Claim Appeals Office, supra. Under these circumstances, the weight to be afforded the expert opinions of Dr. Murk and Dr. Rook was a matter for the ALJ, and we may not substitute our judgment for hers on this issue. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Similarly, the decision not to rely on the opinions of Dr. Elgin and Dr. Storm was a factual issue for the ALJ.
II.
The respondents next contest the ALJ’s refusal to impose a penalty for failure timely to report the injury in accordance with § 8-43-102(1)(a). The respondents argue the claimant testified that she realized her injury was work-related on March 10, 1998. Consequently, they reason the ALJ should have imposed a penalty under the statute. We remand the matter for entry of a new order on this issue.
Section 8-43-102(1)(a) provides that, “[E]very employee who sustains an injury resulting from an accident shall notify said employee’s employer in writing of the injury within four days of the occurrence of the injury.” The statute further provides that if the employee fails to comply the “employee may lose up to one day’s compensation for each day’s failure to so report.”
Borrowing from statute of limitations law, the Court of Appeals has held a claimant’s duty to report the injury is not triggered until the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of the injury. Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981). Generally, this standard is met when the claimant knows her condition is work-related, serious, and to some extent disabling. See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997); Romero v. Industrial Commission, supra. However, we have held a claimant’s ignorance or mistake concerning the legal right to claim workers’ compensation benefits does not excuse failure to file a claim within the statute of limitations See Saxton v. King Soopers, Inc., W.C. No. 4-200-777 (March 11, 1997); Ramos v. Sears Roebuck Co., W.C. No. 4-156-827 (February 10, 1994). The rationale for these decisions is that a mistake of law is not a reasonable excuse for a party’s failure to assert a legal right. See Paul v. Industrial Commission, 632 P.2d 638
(Colo.App. 1981) (persons seeking statutory benefits are presumed to know the applicable law).
Here, the claimant testified that before March 17 she knew her back condition was work-related, “meaning, I knew it happened at work.” However, the claimant stated she did not file a report of injury with the employer because she did not know the circumstances of her injury could provide the basis for a workers’ compensation claim. Instead, the claimant believed workers’ compensation was available only when “something falls on my foot” or “something major” occurs. (Tr. November 20, 1998, p. 53; Tr. September 9, 1999, pp. 15-16).
Under these circumstances, the findings are insufficient to demonstrate the basis of the ALJ’s conclusion that the claimant did not recognize the probable compensable nature of her back condition prior to March 17. Rather, the claimant’s testimony suggests that her failure to notify the employer was predicated upon a misapprehension of the law, not a lack of knowledge concerning the nature, seriousness, and probable compensable character of the injury. On remand, the ALJ should make explicit findings of fact concerning when the claimant recognized the nature, seriousness, and probable compensable nature of the injury so as to trigger the notice requirement. However, even if the ALJ finds the claimant did not report the injury in a timely fashion, the statute makes imposition of a penalty discretionary rather than mandatory. See Rhodes v. J.W. Operating Co., W.C. No. 4-2 580-442 (July 26, 1996). Thus, the ALJ may also be required to enter findings determining whether the circumstances warrant a penalty, and if so, the amount of the penalty.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 20, 1999, is set aside insofar as it denied penalties for the claimant’s failure timely to report the injury. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ 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. 2000. 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 March 28, 2001 to the following parties:
Patricia K. Reddick, 1095 Western Dr., Colorado Springs, CO 80915
Wal-Mart Associates, Inc., 4200 Dillon Dr., Pueblo, CO 81008-2113
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Karen Goad, Claims Management, Inc., P.O. Box 1288, Bentonville, AR 72712
William C. Jolliffe, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy