Opinion
W.C. No. 4-209-474
September 12, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) dated November 16, 1994. We affirm.
The ALJ's order was entered following a hearing on this fully contested claim for compensation. However, it undisputed that the claimant was involved in an industrial accident on April 18, 1994, when he was hit on the head by a falling gutter. The claimant alleged that the gutter weighed 30 to 40 pounds and fell 15 feet before strucking him. The respondents alleged that the gutter weighed only 10 pounds and fell only 3 feet. Consequently, the respondents disputed the claimant's allegation that the accident resulted in a closed head injury, and caused the claimant's subsequent cognitive impairment. Instead, the respondents sought to prove that the claimant's cognitive difficulties are the result of his alcohol and cocaine abuse which predated the industrial accident.
From conflicting evidence, the ALJ found that the claimant suffered a compensable injury on April 18, and awarded medical and disability benefits. In so doing, the ALJ credited the opinions of Dr. McCarthy Ed.D and Dr. Crosby, D.O. that as a result of the industrial accident, the claimant suffers from mild cerebral dysfunction, post concussive organic brain disorder with anxiety disorder, and depression.
I.
On appeal, the respondents argue that the ALJ's order constitutes an abuse of discretion and a violation of their right to due process. Specifically, the respondents contend that the ALJ failed to consider "the issue of credibility" and particularly the claimant's credibility. The respondents also argue that the ALJ erred in crediting the opinions of Dr. McCarthy and Dr. Crosby, because their opinions were based on incredible information provided by the claimant concerning the circumstances of the accident, without an "opportunity" to consider the contrary evidence presented by the respondents which refutes the claimant's version of the accident and establishes the claimant's history of substance abuse. Moreover, the respondents argue that the ALJ "abdicated" his role as the fact finder by relying "strictly" on the opinions of Dr. McCarthy and Dr. Crosby to determine the cause of the claimant's mental impairment. These arguments are without merit.
Initially, we reject the respondents' contention that the ALJ's pertinent findings are "solely" and "strictly" based on medical evidence. Although the ALJ credited Dr. McCarthy's and Dr. Crosby's diagnoses of the claimant's mental impairment, the ALJ credited the respondents' lay testimony concerning the circumstances surrounding the industrial accident, as well as the claimant's history of substance abuse. Tr. September 16, 1994, pp. 105-107; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev'd on other grounds 783 P.2d 269 (1989) (it is proper to consider the ALJ's oral findings to interpret the ALJ's written order).
Similarly, we are not persuaded that the ALJ failed to resolve the conflicts in the evidence or failed to consider the issue of "credibility." The ALJ expressly found the opinions of Dr. McCarthy and Dr. Crosby credible and persuasive. Furthermore, the ALJ's resolution of the conflicting evidence concerning the weight of the gutter and distance it fell, and the claimant's substance abuse, reflect the ALJ's determination to reject the claimant's testimony on these issues. See Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987) (ALJ is not required to specifically articulate the basis for his resolution of conflicts in the evidence concerning credibility); see also El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (the ALJ may credit all, part or none of a witness' testimony).
The respondents are clearly dissatisfied with the ALJ's implicit determination to credit the claimant's testimony of a causal connection between the industrial accident, and his subsequent cognitive difficulties. However, we have no authority to substitute our judgment for that of the ALJ and we cannot interfere with the ALJ's credibility determinations unless the evidence the ALJ found persuasive is rebutted by such hard, certain evidence as to render it incredible as a matter of law. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Admittedly, the respondents presented some evidence which, if credited, might support a conclusion that Dr. McCarthy and Dr. Crosby incorrectly determined the cause of the claimant's cognitive impairment, as a result of their reliance on the claimant's statements concerning his medical history and the circumstances surrounding the industrial accident. However, we cannot say that this evidence is such hard, certain evidence that it necessarily refutes the opinions of Dr. McCarthy and Dr. Crosby that the claimant's impairment is the result the April 18 industrial accident. Cf. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968) (fact that claimant gives an incomplete history goes to weight, not sufficiency of a physician's opinion).
To the contrary, the ALJ determined that the evidence concerning the claimant's substance abuse was not dispositive, because the medical reports did not identify substance abuse as the cause of the claimant's mental impairment. Tr. September 16, 1994, p. 106. Because this finding is a plausible interpretation of the record, it must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.) ; F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences); Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ's inferences were permissible ones in light of the totality of the circumstances).
The respondents do not cite any medical report which suggests that the claimant's mental impairment is the result of substance abuse. Nor did the respondents' present any medical testimony of a causal connection between the abuse and the claimant's mental impairment. Conversely, Dr. Kooken was aware of the claimant's substance abuse at the time he fulfilled the respondents' request for an independent medical examination of the claimant, but he did not attribute the claimant's depression to the abuse.
Insofar as the respondents also contend that these circumstances compel a conclusion that the ALJ "abused his discretion" in crediting the opinions of Dr. McCarthy and Dr. Crosby, we disagree. As we stated above, appellate review of the ALJ's credibility determinations is based upon a substantial evidence standard and not the "abuse of discretion" standard. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Next, we reject the respondents' "due process" argument. Due process requires that the parties be afforded a reasonable opportunity to present evidence in support of their position and confront contrary evidence. Puncec v. City County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990).
Here, the respondents endorsed Dr. McCarthy and Dr. Crosby as witnesses in their July 11, 1994 response to the claimant's Application of Hearing. However, the respondents did not call either physician to testify. The ALJ did not restrict the respondents from presenting medical testimony, and in fact, granted the respondents leave to cross-examine two other physicians by deposition. Tr. August 30, 1994, p. 5; September 16, 1994 p. 56. Under these circumstances, the respondents' due process rights are not implicated by the fact that Dr. McCarthy and Dr. Crosby rendered their opinions without an "opportunity" to hear the respondents' evidence. To the contrary, the respondents could have called these witnesses and confronted them with the evidence, or obtained permission to depose them.
The respondents' remaining arguments have been considered and do not alter our conclusions. Consequently, the respondents have failed to establish grounds which afford us a basis to set aside the ALJ's order.
II.
For its part, the claimant contends that the respondents' appeal violates § 8-43-301(14), C.R.S. (1995 Cum. Supp.), and requests that we award him costs and attorney fees.
Section 8-43-301(14), states that:
"[T]he signature of an attorney on a petition to review or brief in support thereof constitutes a certificate by the attorney that such attorney has read the petition or brief; that, to the best of the attorney's knowledge, information, or belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, cause delay or unnecessarily increase the cost of litigation. If a petition or brief is signed in violation of this subsection (14), the director, the administrative law judge, or the panel shall award reasonable attorney fees and costs to the party incurring the fees and costs as a result of the improper actions."
Relying on Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496 (Colo.App. 1994), we have previously concluded that an appellate brief does not violate § 8-43-301(14) if it is predicated on a rational argument based in law or fact. Sena v. Department of Corrections, W.C. No. 4-147-185, March 2, 1995; Jones v. Chicken-N-Pasta, W.C. No. 4-197-841, February 3, 1995; Waymire v. City of Las Animas, W.C. No. 4-142-136, July 21, 1995. We adhere to our previously stated position here.
Although not persuasive, the respondents presented a rational argument that the opinions of Dr. McCarthy and Dr. Crosby concerning the cause of the claimant's disability were without probative value because they were based on evidence the ALJ rejected concerning the weight and falling distance of the gutter and the claimant's history of substance abuse. Mission Denver, Co. v. Pierson, 674 P.2d 363 (Colo. 1984) (likelihood of prevailing on theory is not dispositive of whether argument is frivolous). Therefore, we cannot say that the respondent's appeal is not predicated on a rational argument based in fact, and deny the motion for costs and attorney fees.
IT IS THEREFORE ORDERED that the ALJ's order dated November 16, 1994, is affirmed.
IT IS FURTHER ORDERED that the claimant's request for an award of costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1994 Cum. Supp.).
Copies of this decision were mailed September 12, 1995 to the following parties:
Thomas J. Segura, 101 e. 88th Ave., #F-113, Thornton, CO 80229
NBQ Construction Inc., 2325 W. 72nd Ave., Denver, CO 80221
State Farm Fire Casualty Co., Attn: D.A. Tabor, 4380 S. Syracuse St., #200, Denver, CO 80237
Julie Evans Anderson, Galleria Office Towers, #956-S, 720 S. Colorado Blvd., Denver, CO 80222 (For the Claimant)
Margaret Keck, Esq., 1873 S. Bellaire St., #1400, Denver, CO 80222 (For the Respondents)
BY: _______________________