W.C. No. 4-786-651.Industrial Claim Appeals Office.
January 27, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated August 24, 2009, that denied and dismissed the claimant’s claim for benefits under the Workers’ Compensation Act. We affirm.
The claimant alleged an injury to his left ear, right upper back and left knee arising out of a claimant incident of February 13, 2009. The claimant contended he was injured while drilling holes in concrete for preparation work on a highway project. The ALJ found that the claimant was not credible. This determination was based upon the totality of the evidence including testimony from employer witnesses, medical reports and a surveillance video. The ALJ concluded that the claimant had failed to establish that he sustained a work-related injury while working for the employer on February 13, 2009 and denied the claim. The claimant brings this appeal.
I.
The claimant first contends the ALJ committed reversible error when he allowed the respondents to enter a surveillance video into evidence even though respondents had refused to produce it when specifically asked to do so in discovery. We are not persuaded that the ALJ abused his wide discretion in allowing the video into evidence.
At the time of the hearing, the respondents sought to introduce into evidence a surveillance tape. The claimant objected on the grounds that, although it had been requested in discovery it had never been provided to him prior to the hearing. Tr. at 70, 80-81. The respondents asserted, and the claimant agreed, that the existence of the surveillance had been disclosed in discovery. Tr. at 71. We note that the discovery
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requests and responses were not placed in evidence; rather, a verbal description is contained in the transcript. Tr. at 70-71. In addition, the discovery response apparently provided that the surveillance video would be provided. Tr. at 71. The ALJ allowed the video into evidence. Exhibit K; Tr. at 80-81.
We do not find the discovery documents in the record and therefore they are not available for our review. In his brief, the claimant has provided a more specific description of the discovery response. However, our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995) Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987).
Under section 8-43-207(1), C.R.S. 2009, “the ALJ is vested with wide discretion in the conduct of evidentiary proceedings.”Ortega v. Industrial Claim Appeals Office, 207 P.3d 895, 897 (Colo. App. 2009); see also Eller v. Industrial. Claim Appeals Office, ___ P.3d ___, ___, No. 08CA2274 (Colo. App., Sept. 3, 2009) (applying an abuse of discretion standard to evidentiary rulings ); Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, 222 (Colo. App. 2008) (“An abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law.”) This discretion includes whether to impose discovery sanctions, as well as the nature of those sanctions. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619, 621 (Colo. App. 2003); see also Pinkstaff v. Black Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo. 2009) (“When discovery abuses are alleged, courts should carefully examine whether there is any basis for the allegation and, if sanctions are warranted, impose the least severe sanction that will ensure there is full compliance with a court’s discovery orders and is commensurate with the prejudice caused to the opposing party.”)
Although the claimant was aware that video surveillance existed he did not seek to compel disclosure of the video. Tr. at 70-72. Further, at the time of the hearing the claimant did not ask for a continuance in order to prepare for the evidence contained in the video surveillance. Tr. at 70, 80-81. The claimant did have the opportunity to rebut through his own testimony inferences created by the video surveillance. Tr. at 104-05. The claimant did not deny that he was the person shown in the video. Tr. at 104-05. Given the ALJ’s broad discretion in the conduct of evidentiary proceedings, we cannot say that ALJ’s action in allowing the surveillance into evidence was beyond the bounds of reason.
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II.
The claimant next contends that there the ALJ erred in finding that medical records from March 2008 reflect treatment to exactly the same body components as the claimant reports were injured on February 13, 2009, and that this is not supported by substantial evidence in the record. The ALJ found that this medical report conflicted with the claimant’s denial of previous conditions except for a back condition.
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003
Here the claimed injury occurred on February 13, 2009. There is a report dated March 9, 2008 from Emergicare listing the claimant’s chief complaints as neck, back knee left ear and hearing. Exhibit C. This exhibit was admitted into evidence without objection. Tr. at 4-5. With the exception of his low back the ALJ noted that the claimant had denied seeking prior treatment for the body parts claimed to be affected in the alleged February 13, 2009 injury. Tr. at 35.
On appeal, the claimant argues that the medical record from Emergicare is erroneously dated March 9, 2008 as a result of a typographical error. The claimant notes his own testimony denying that he had gone to Emergicare on March 9, 2008. Tr. at 36. The claimant contends that the only conclusion to be drawn from the document is that the record in fact represents a March 9, 2009 examination made by Dr. Grelich after the claimed industrial injury. We disagree.
We acknowledge that the evidence is subject to conflicting interpretations, and that the medical record might bear the interpretation given to it by the claimant. However, such resolution of the conflict is left to the ALJ. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Here we cannot say that the ALJ was compelled to conclude that the date on the face of the medical record was in error, rather than determine that the claimant’s testimony was not credible.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 24, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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LOUIS PARRA, 22 LOYOLA LANE, PUEBLO, CO, 81005 (Claimant)
TRIPLE G CONSTRUCTION, 1618 BONFORTE BLVD #F, PUEBLO, CO, 81001 (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., 7501 E LOWRY BLVD, DENVER, CO, 80230 (Insurer)
KONCILJA KONCILJA, PC, Attn: ROBERT D BAUMBERGER, ESQ., 125 WEST B STREET, PUEBLO, CO, 81003-3400 (For Claimant)
RITSEMA LYON, Attn: KELLY F KRUEGEL, ESQ., 999 18TH STREET, SUITE 3100, DENVER, CO, 80202 (For Respondents)