W.C. No. 4-703-346.Industrial Claim Appeals Office.
April 10, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated September 26, 2007 that denied and dismissed the claimant’s claim for a work-related injury and granted the respondents’ request to withdraw their admission of liability prospectively. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant testified that he suffered a work-related low back injury while working for the employer on October 19, 2006. However, the claimant’s testimony regarding the alleged accident was not credible. On July 3, 2002, the claimant had visited the DeKalb Medical Center and reported having suffered a work-related low back injury caused by a lifting accident. Dr. Haskins opined that the claimant’s treatment at the DeKalb Medical Center, totally negated any injury claim since all of his complaint could be due to the previous injury and he obviously falsely represented himself stating that he had no history of prior back injures. Dr. Haskins’ opinion was found by the ALJ to be credible and persuasive.
The ALJ concluded that the claimant had not proven that he sustained a work-related injury while working for the employer. Therefore, the ALJ denied and dismissed the claimant’s claim for workers’ compensation benefits and allowed the respondents to withdraw their admission of liability, but only prospectively.
I.
The claimant argues that H. H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990) dictates a finding of compensability as an aggravation of a preexisting condition. We disagree.
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It is true that if an industrial injury aggravates or accelerates a preexisting non-industrial condition so as to cause a need for treatment, the claimant has sustained a compensable injury and respondents are liable for treatment caused by the aggravation Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004); H H Warehouse v. Vicory, supra. However, the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that the ALJ must determine, if contested, under the preponderance of the evidence standard. Leprino Foods Co. v. Industrial Claim Appeals Office 134 P.3d 475 (Colo.App. 2005) Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo.App. 2001).
We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
Here the ALJ found with record support that the claimant’s testimony was not credible. The claimant testified that he lied to the medical personnel at the DeKalb Medical Center in an effort to obtain medications. Tr. at 54, 91. The claimant submitted an application for employment to the employer and denied ever having been fired from a job. Exhibit E at 144. However, the claimant admitted at hearing that he had been fired by several previous employers. Tr. at 96-97, 110. Dr. Haskins opined that he questioned if the claimant was consciously magnifying his symptoms and his physical therapist stated she thought he was magnifying his symptom complaints. Exhibit A at 6. Dr. Haskins observed the claimant walk down the hallway with no abnormal gait, yet in the examining room he walked as if he had a limp. Exhibit A at 11. The claimant initially testified that he stopped using drugs in 2003, but on cross-examination, the claimant admitted having multiple relapses since that time. Tr. at 88-89, 100, 106.
The ALJ’s credibility determinations are binding except in extreme circumstances. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997). Here the ALJ had ample evidence to support her credibility determination and therefore to deny the claim.
The claimant contends that while he failed to disclose his prior low back injury he was not symptomatic at the time of the claimed October 19, 2006 accident. The claimant argues that there were positive signs of a back injury following the claimed October 19,
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2006 accident including a MRI, which showed a disk protrusion and palpable spasms record by Dr. Haskins. Therefore, the claimant argues that H H Warehouse v. Vicory dictates a finding of compensability. We disagree.
Even if we assume that the positive signs represent irrefutable proof of a back injury it does not necessarily follow that the claimant suffered the injury in the claimed October 19, 2006 accident. As noted above the ALJ found, with ample record support, that the claimant’s testimony was not credible. The ALJ made a point of noting that there were no witnesses to the alleged accident. We are not persuaded tha H H Warehouse v. Victory dictates a finding of compensability in the present case.
The claimant appears to argue that there was no medical evidence to support the ALJ’s finding that the claimant’s failure to disclose his previous claimed back injury totally negates any injury claim since all of his complaints could be due to a previous injury. We disagree. Dr. Haskins opined that “This information however alone totally negates any injury claim by Mr. Roe in my opinion since all of his complaints could be due to a previous injury and he is obviously falsely represented himself stating that he had no history of prior back injuries.” Exhibit 20 at 47. Even if there was no opinion from a medical expert to support this finding it is a plausible inference drawn from the record.
The claimant argues that the ALJ erred as a matter of law in her refusal to admit into evidence a document marked Exhibit 8, which is a “SIU Referral Investigation Report.” This report chronicled a conference with an Assistant Attorney General on the issue of whether the claimant could be criminally prosecuted for having lied to treating physicians and in response to interrogatories. The claimant offered the investigation report at the inception of the hearing with the general packets of exhibits offered under § 8-43-210, C.R.S. 2007. Section 8-43-210 contains an exception to the Colorado rules of evidence and requirements of proof for medical and hospital record, physicians’ reports, vocational reports, and records of the employer, which are admissible as evidence and can be filed in the record as evidence without formal identification. The respondents’ objection to the investigation report was sustained because it was not a medical record, physician report, vocational report or a record of the employer. Tr. at 23. The claimant then argued that a record from the employer or the insurer were one in the same. Tr. 25-26. The claimant also offered it as a business record. Tr. 24.
The ALJ, noting that the investigation report was offered under the auspices of § 8-43-210, C.R.S. 2007, found that it was not an employer record, but rather a record generated by the employer’s insurance company. Tr. 24. The ALJ rejected the investigation report on the ground that there was no foundation laid for its admission. The ALJ advised the counsel for the claimant that it might come into evidence, but he
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would have to lay a proper foundation. At the conclusion of the hearing, having made no further attempt at introducing investigation report into evidence, counsel for the claimant made an offer of proof regarding the document.
We recognize that § 8-43-210 allows, without formal identification, records of the employer. However, we have previously held that the insurer’s records do not constitute “employer records” for the purposes of admission under § 8-43-210. Morrow v. J.J. Maintenance
W.C. No. 4-561-243 (April 4, 2005). We see no reason to depart from this determination. The claimant’s reliance on Churchill v. Sears, Roebuck Co., 720 P.2d 171 (Colo.App. 1986) is misplaced. I Churchill, a letter from claimant’s employer concerning reasons for termination of claimant’s rehabilitation was found to be admissible without formal identification. The exhibit in question here was the insurer’s records and therefore, the rule of admission without formal identification contained in § 8-43-210 for employer or vocational reports does not apply. Therefore, we perceive no error in the ALJ’s evidentiary ruling on the investigation report.
The claimant next argues that the ALJ erred in failing to grant his motion to reopen the record. The claimant filed a motion to reopen the record of his June 28, 2007, hearing and to supplement the record by the admission of the investigation report. The claimant argued that the respondents in their post hearing position statement had asked to be allowed to withdraw their general admission of liability because the claimant knowingly and willfully made a misrepresentation. Therefore, the claimant argued that the investigative report was relevant to the case and should be admitted. The ALJ denied the motion.
Section 8-43-301(5), C.R.S. 2007 affords an ALJ jurisdiction to reopen a hearing after the apparent conclusion of the proceedings in order to receive additional evidence pertinent to determining the compensability of the claim. See Gilbert v. Rider Woulf, P.C, W.C. 4-243-377 (July 13, 1998), affd., Case No. 98CA1393 (Colo.App. Apr. 29, 1999) (not selected for publication); Hernandez v. Wendy’s International, Inc. W. C. No. 4-562-710 (December 19, 2003). However, the ALJ is given substantial discretion in the conduct of evidentiary proceedings, and we may not interfere with her refusal to reopen the proceedings unless an abuse is shown. Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430 (Colo.App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse is not shown unless the ALJ’s decision is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Authentication of a document is a condition precedent to its admissibility and is satisfied by a showing that the document is what the proponent claims it to be. CRE 901;
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Rojhani v. Meagher, 22 P.3d 554 (Colo.App. 2000). Whether a proper foundation has been established is a matter within the sound discretion of the trial court. Henderson v. Master Klean Janitorial, Inc. 70 P.3d 612 (Colo.App. 2003); People v. Huehn, 53 P.3d 733 (Colo.App. 2002). Here, the claimant failed to lay the requisite foundation for admission of the report by not offering evidence of authentication. In addition, the claimant failed to provide the foundational elements necessary to prove that the documents are business records within the meaning of CRE 803(6). We perceive no abuse of discretion in excluding the investigation report from evidence.
Moreover, any error on the admission of the investigation report was harmless. The respondents had argued not only for prospective withdrawal of their admission of liability, but also sought to retroactively withdraw the admission pursuant to Kraus v. Aircraft Sign Company, 626 P. 1164 (Colo. 1985). The ALJ determined the respondents had failed to prove that the claimant knowingly and willfully made a false representation concerning his physical condition on his employment application and so denied the request to withdraw the admission retroactively. The claimant sought the reopening of the record to introduce the investigation report into evidence on the issue of retroactive withdraw of the admission. The claimant contends that the investigation report demonstrates he did not make a false representation knowingly and willfully.
Here the ALJ ruled against the respondents on their request to withdraw their general admission of liability retroactively and the respondents have not appealed that decision. Therefore, additional evidence by the claimant on the issue is pointless. Under these circumstances, any error regarding the admission of the investigation report was harmless and will be disregarded. See CRE 103(a) (error may not be predicated on the exclusion of evidence unless a substantial right of the party is affected); § 8-43-310, C.R.S. 2007 (harmless error standard for review of workers’ compensation cases); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order issued September 26, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ John D. Baird
_______________________________ Thomas Schrant
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HALL IRWIN CORPORATION, Attn: ED FOSTER, P O BOX 309, MILLIKEN, CO, 80634 (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer)
RING ASSOCIATES, PC, Attn: BOB L RING, ESQ., FT COLLINS, CO, (For Claimant)
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: VITO A RACANELLI, ESQ., DENVER, CO, (For Respondents)
PINNACOL ASSURANCE, Attn: DAVID REED, DENVER, (Other Party)
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