W.C. No. 4-209-872Industrial Claim Appeals Office.
August 11, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which denied their request to withdraw an admission of liability. We affirm.
By General Admission of Liability, dated April 20, 1994, the respondents admitted that the claimant sustained a compensable injury on February 18, 1994. Subsequently, the respondents moved to have the admission declared void ab initio. Alternatively, the respondents sought to withdraw the admission prospectively on the theory that it was mistakenly filed.
In support of their request, the respondents contended that the claimant falsely told the adjuster that he injured his back at work while lifting a saw on February 18, 1994. Their contention was based upon the medical records which indicate that the claimant injured his back while shovelling snow in early February 1994, or as result of a chiropractic manipulation on the morning of February 18.
However, the ALJ found that the claimant suffered a herniated disc which was caused by lifting the saw at work, and denied the respondents’ request to withdraw the admission. In support of this finding, the ALJ cited evidence that the chiropractor’s office note from February 18 indicated that the claimant was getting better. Further, the ALJ relied on the testimony of the claimant’s co-worker who stated that he observed the claimant sustain an injury while lifting the saw. Finally, the ALJ relied on the testimony of Dr. Kleiner that it is doubtful the claimant would have been able to perform any work on February 18 if the injury was inflicted at the chiropractor’s office.
On review, the respondents contend that the ALJ erred in determining that the claimant was injured at work on February 18, 1994, and in denying their request to withdraw the admission of liability. In support of this position, the respondents cite various aspects of the medical evidence and the testimony which support their position. We find no error.
It is certainly true that the respondents were entitled to have the admission declared void ab initio if the claimant procured it by giving false information to the respondents’ adjuster. Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981). Alternatively, the respondents were entitled to withdraw the admission prospectively if the ALJ determined that the claimant was not injured at work. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990).
However, the ALJ determined that the claimant was injured at work on February 18, and the injury resulted in a herniated disc. This finding, which is one of causation, must be upheld if supported by substantial evidence in the record. F. R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985); § 8-43-301(8), C.R.S. (1994 Cum. Supp.). In determining whether there was substantial evidence to support the ALJ’s finding, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Here, there were certainly conflicts in the evidence concerning whether or not the claimant’s herniated disc was attributable to the alleged work injury of February 18, or to prior incidents unrelated to his employment. However, the claimant’s testimony that he sustained an injury at work on February 18 was corroborated by a co-worker. Further, there was medical evidence that, if the chiropractor had injured the claimant on February 18, the claimant would not have been able to return to work and perform his job duties. (Tr. pp. 57-58, 71). It follows that the record contains substantial evidence to support the ALJ’s conclusion that the respondents’ admission was not mistakenly filed or predicated on fraudulent representations by the claimant.
Certainly, it is also true that the ALJ might have drawn other inferences and conclusions. However, we are not free to substitute our judgment for that of the ALJ concerning these factual issues, and we decline the respondents’ invitation to do so. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
IT IS THEREFORE ORDERED that the ALJ’s order, dated December 1, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed August 11, 1995 to the following parties:
William T. Warzocha, 7590 S. Garland, Littleton, CO 80123
Dal-Tile Corporation, Attn: Don Bethke, 735 S. Huron, Denver, CO 80223
AIG Claim Services, Attn: Patrick Coughlin, P.O. Box 32130, Phoenix, AZ 85018
Richard Bovarnick, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227
(For the Respondents)
Gregory W. Heron, Esq., Laurence J. Free, Esq. and Marshall A. Fogel, Esq., 1199 Bannock St., Denver, CO 80204
(for the Claimant)
By: __________________________