W.C. No. 4-210-391Industrial Claim Appeals Office.
March 4, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) dated June 29, 1995. We affirm.
From highly conflicting evidence, the ALJ found that the claimant suffered a disabling back injury arising out of and in the course of his employment for Wood Recovery Systems (Wood Recovery) on April 9, 1994. The ALJ’s finding was based on his decision to credit the testimony of the claimant and Roger Woods. Consequently, the ALJ ordered the respondents to pay temporary total disability benefits commencing April 10, 1994. The ALJ also determined that Wood Recovery did not refer the claimant to any specific medical provider at the time of the injury. Therefore, the ALJ determined that the respondents are liable for the treatment provided by Dr. Bolles, the physician selected by the claimant.
I.
Relying on Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986), the respondents contend that the ALJ erred as a matter of law in crediting the testimony of the claimant and Roger Woods. We disagree.
As stated by the Supreme Court in Halliburton Services v. Miller, supra, the ALJ’s credibility determinations from conflicting evidence are generally binding on review. While the Supreme Court acknowledged the possibility that the testimony of a particular witness, although direct and unequivocal, may be “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness, the court concluded that such an extreme situation did not exist in Halliburton. Rather, the Supreme Court determined that, even though the respondents presented evidence which created a strong inference that the claimant had not notified the employer of a work-related injury, the respondents’ evidence did not directly undermine the claimant’s testimony. Therefore, in Halliburton, the court declined to hold that the claimant’s testimony that he reported the injury within two days of the industrial accident, was incredible as a matter of law.
We conclude that the circumstances presented here are similar to the facts in Halliburton. Admittedly, the testimony by the respondents’ witnesses, if credited, creates a strong inference that the claimant did not suffer a compensable injury. However, that testimony does not directly undermine the testimony credited by the ALJ. Therefore, we decline to conclude, as a matter of law, that the ALJ erred in crediting the testimony of the claimant and Roger Woods.
The ALJ was free to credit only a part of the claimant’s testimony. El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993). Therefore, the ALJ could discredit the claimant’s testimony that Gabe Leighton was working with him on April 9, yet still believe the claimant’s testimony that he suffered a work-related injury on that date. The former testimony does not directly refute the latter. Similarly, the evidence that Demetri Estralla worked on April 9, but did not work with the claimant and did not witness the claimant’s injury, does not directly undermine the claimant’s testimony that he was injured at work that day.
Nor is a different result compelled by the other inconsistencies pointed out by the respondents. Although the notice of claim for workers’ compensation indicates that the injury occurred at 7 p.m. on April 9, which is inconsistent with testimony and payroll records indicating that neither the claimant nor Roger Woods worked until 7 p.m. on April 9, the claimant testified that he did not know when he began work on April 9 or the exact time of the injury (Tr. April 24, 1995; pp. 20, 21). The ALJ implicitly resolved the conflict by finding that the injury occurred sometime during the claimant’s workday on April 9. This was a permissible resolution. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is the fact finder’s prerogative to resolve inconsistencies in the evidence).
The respondents also contend that the ALJ failed to weigh the testimony of its witnesses, Andre Ovido, John Edwards and Randall Lofquist, in assessing the claimant’s credibility. However, the ALJ expressly found that his findings of fact were based upon a “complete weighing of all the other evidence presented by the parties,” and we have no basis for believing otherwise. See Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970) (ALJ is not required to make express findings concerning the evidence he found unpersuasive).
Finally, we note that the testimony of the respondents’ witnesses also contains internal inconsistencies. Therefore, we cannot say that the claimant’s testimony is rebutted by hard, certain evidence to the contrary. See Halliburton Services v. Miller, supra. The respondents’ remaining arguments on this issue have been considered, but are not persuasive.
II.
It is clear that the credibility of the witnesses was the central issue before the ALJ, and is the central issue on appeal. Further, the credibility of the various witnesses was extensively addressed in the respondents’ Brief in Support of the Petition for Review. Therefore, the claimant’s appellate assertion that the testimony of the respondents’ witnesses was “perjured” or “otherwise manufactured” is essentially a restatement of the dispute before the ALJ. Under these circumstances, we deny the respondents’ “Motion to Strike” the claimant’s assertion, and “Motion for Leave to File Response” to the claimant’s brief in opposition to the petition for review.
III.
Lastly, the respondents contend that the ALJ erroneously determined that Wood Recovery failed to exercise its statutory right under §8-43-404(5)(a), C.R.S. (1995 Cum. Supp.), to select the treating physician. Therefore, the respondents argue that the ALJ erred in ordering them to pay for the medical treatment provided by Dr. Bolles. We disagree.
In the case of Broadmoor Hotel v. Industrial Claim Appeals Office, Colo. App. No. 92CA1635, May 27, 1993 (not selected for publication), the Court of Appeals stated that:
“Consistent with the plain language of the statute, generalized notification of an authorized medical facility, by use of a signed form at the time an employee is hired, or by written notice(s) posted at the employer’s premises is not necessarily a sufficient tender of services of a physician at the time of the injury.”
Based upon this language in Broadmoor, we subsequently concluded that the sufficiency of an employer’s pre-injury designation of an authorized medical provider is a question of fact to be determined by the individual circumstances of the case. Trujillo v. Oppenheimer Management Group, W.C. No. 4-143-750, August 9, 1993; Jones v. Weld County Government, W.C. No. 4-176-234, December 8, 1994. In so concluding, we stated that the ALJ’s determination may turn on factors which include the nature of the notice given by the employer, and the time period which has elapsed since the notice was provided.
Here, the claimant testified that he signed a form pre-designating a “company physician” during a prior period of employment with Wood Recovery. (Tr. April 24, 1995, p. 29). He also stated that he did not fill out any new paperwork during his subsequent period of employment which included April 9, 1994. (Tr. April 24, 1995, p. 31). Based upon this evidence, we reject the respondents’ argument that the ALJ was compelled to find that the pre-designation was, in and of itself, a sufficient tender of medical services at the time of the claimant’s April 9 injury.
Furthermore, the claimant testified that when he reported the industrial injury to John Edwards and Randy Lofquist on April 10, 1994, he was not referred to a particular doctor. (Tr. April 24, 1995, pp. 14, 15). Because the ALJ expressly credited the claimant’s testimony, the record supports the ALJ’s finding that the respondents did not refer the claimant to any specific medical care provider at the time of the injury. Therefore, the ALJ did not err in concluding that the right of selection passed to the claimant, and that respondents are liable for the treatment provided by the physician selected by the claimant. Section 8-43-404(5)(a); Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 19, 1995, is affirmed.
IT IS FURTHER ORDERED that the respondents’ “Motion to Strike or in the Alternative” file a reply brief, is denied.
INDUSTRIAL CLAIM APPEALS PANEL
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 4, 1996 to the following parties:
William G. Stough, 38 Kodiak Ct., Longmont, CO 80501
Home Builders Services, Inc. d/b/a Wood Recovery Systems, Attn: John Edward, 3031 Hwy. 119, Longmont, CO 80501
Liberty Mutual Insurance Co., Attn: David Fairchild, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
James H. Massey, Esq., 320 Main St., Longmont, CO 80501
(For the Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
(For the Respondents)
BY: _____