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In re Whitlock, W.C. No

Industrial Claim Appeals Office
Dec 29, 1998
W.C. No. 4-254-861 (Colo. Ind. App. Dec. 29, 1998)

Opinion

W.C. No. 4-254-861

December 29, 1998


FINAL ORDER

The claimant seeks review of a final order of Administrative Law Judge Atencio (ALJ), which denied his claim for workers' compensation benefits. The claimant contends the ALJ failed to give effect to a stipulation, failed to consider evidence demonstrating the existence of a compensable injury, made findings of fact which are not supported by the evidence, and impermissibly considered evidence of convictions and arrests. We affirm.

The claimant alleged that he sustained injuries to his head, neck, right shoulder, and back when he was hit by a truck on March 28, 1995. It is not disputed that the claimant was examined at an emergency room on March 28. However, the issue in the case is whether the claimant's disability and need for treatment are causally connected to the March 28 incident.

The ALJ concluded that the claimant failed to prove that he sustained any compensable injury as a result of the March 28 incident. In support, the ALJ found that the claimant's testimony concerning the injury lacked credibility. In this regard, the ALJ found that the respondents propounded an interrogatory inquiring whether the claimant had been convicted of or arrested for any felonies or misdemeanors. The claimant provided a written answer that there were no convictions or arrests. However, at the hearing, the claimant admitted on cross-examination that he had prior convictions, and was the subject of several pending charges. The claimant also incorrectly testified that all charges occurred after March 28, 1995. The ALJ also found that the claimant's testimony concerning the mechanism of the alleged injury was inconsistent with the history he gave to several physicians. Finally, the ALJ found that the claimant gave an untruthful answer to an interrogatory concerning preexisting medical conditions.

The ALJ determined that the claimant's symptoms subsequent to March 28, 1995, were "the likely result" of the claimant's prior injuries. The ALJ cited a preexisting disk bulge at C5-6.

I.

On review, the claimant disputes the ALJ's determination that he failed to prove any compensable injuries arising out of the March 28 incident. The claimant first argues that all parties stipulated that the claimant sustained a compensable injury on March 28. We are not persuaded.

Generally, a court should make every effort to give effect to stipulations. However, a court need not give effect to a stipulation where manifest injustice would result. See Lake Meredith Reservoir Co. v. Amity Mutual Irrigation Co., 698 P.2d 1340 (Colo. 1985).

The stipulation on which the claimant predicates his argument was made at a hearing held on May 7, 1996. The May 7 hearing, which was held long before the 1997 and 1998 hearings on compensability and benefits, concerned the issue of whether Colorado has jurisdiction to adjudicate the claim. The parties agreed that, for purposes of resolving this issue, the claimant was "injured in Colorado." (Tr. May 7, 1996 p. 29).

In view of the limited scope of the May 7 hearing, the ALJ properly exercised her discretion by not giving effect to the stipulation when the issues later focused on compensability and causation. In fact, at the 1996 hearing claimant's counsel took the position that if the jurisdictional issue were resolved favorably to the claimant, the claimant should "have the right to proceed on the remaining issues, compensability, and so on." Under these circumstances, the respondents may not have understood that the stipulation pertaining to jurisdiction was intended to establish a binding agreement that the March 28 incident resulted in compensable injuries. To the contrary, counsel for respondents Asbell McCormick, Inc. and Colorado Compensation Insurance Authority expressly disagreed that the stipulation applied to the issues of causation and compensability. (Tr. Oct. 23, 1997, p. 19).

II.

The claimant next contends that the ALJ's denial of benefits is not supported by the record. The claimant argues that "independent evidence" not considered by the ALJ establishes that he sustained compensable injuries on March 28. We disagree.

In order to recover benefits the claimant was required to prove that he sustained injuries proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 1998. The question of whether the claimant proved a causal relationship between the incident on March 28, 1998, and his subsequent disability and need for treatment was one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Because proof of causation is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

Medical proof of causation is not required in workers' compensation ases. However, if expert medical evidence is offered, it is the ALJ's sole prerogative to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ is not obligated to make findings of fact concerning every piece of evidence, so long as she enters findings concerning the evidence which she considers determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).

The claimant argues that the ALJ failed to consider "independent evidence" that he sustained compensable injuries on March 28. In support, the claimant points out that in March 1996 counsel for the Walker respondents admitted, in response to an interrogatory, that the claimant "was in an accident" on March 28, 1995. The claimant also relies on testimony of a witness who stated that the claimant was taken to an emergency room on March 28.

Neither of these pieces of evidence constitutes an admission that the claimant sustained compensable injuries causally connected to the "accident" on March 28. At most, this evidence indicates the claimant reported sustaining injuries on March 28, and that there was a response to his report. The ALJ obviously did not find this evidence decisive, and therefore, she was not obliged to mention it in her order. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970).

The claimant next contests Finding of Fact 10, in which the ALJ found that the "San Luis Valley Regional Medical Center records further indicated that there was no swelling or marks on [the claimant's] body." The claimant points out that the emergency room record mentions a "bump on back of head," and that the claimant was advised to take two or three days off work because of his injury.

However, as the respondents point out, the ALJ's finding that there was no "swelling or marks" on the claimant's body is a verbatim quotation from the notes of the emergency room physician. Moreover, the reference to a "bump on the head" could be interpreted as history given by the claimant, not the report of an observation by the emergency room nurse. The fact that the claimant was directed to take two or three days off work neither affirms nor negates the finding that there were no marks on his body.

The claimant next contests Conclusion of Law 5 where the ALJ states there was "no persuasive or credible medical evidence" supporting the claimant's assertion that he sustained compensable injuries. The claimant points out that the San Luis Valley Regional Medical Center records, the testimony and records of Dr. Kleuser, and some other medical records would support a finding of causation. However, the ALJ was not persuaded by this evidence in light of other evidence indicating that, to the extent the claimant has any physical problems, they are causally connected to preexisting injuries. We decline the claimant's invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from conflicting medical evidence.

The claimant also argues that the ALJ's conclusion that the claimant's symptoms are related to a preexisting condition is not supported by any findings of fact or medical evidence. However, the ALJ made extensive findings concerning MRI and x-ray evidence indicating that the claimant had a preexisting cervical condition. The ALJ's conclusion that the claimant's symptoms are associated with a preexisting condition constitutes a plausible inference from this evidence. The fact that the respondents did not submit a medical opinion directly corroborating this inference does not vitiate the order. Rockwell International v. Turnbull, supra.

III.

The claimant's final contention is that the ALJ erred in admitting evidence of prior felony and misdemeanor arrests and convictions. The claimant argues that the ALJ's consideration of this evidence violates § 13-90-101, C.R.S. 1998, pertaining to the admission of felony convictions for purposes of impeachment. We perceive no error.

Section 13-90-101 permits a party to introduce evidence of a felony conviction "for the purpose of affecting the credibility of such witness." The statute also prohibits introduction of evidence of a felony conviction which occurred "five years prior to the time when the witness testifies" in any civil action.

However, § 13-90-101 does not constitute the sole avenue by which evidence of prior misconduct, including criminal conduct, may be admitted for the purpose of impeaching a witness. To the contrary, CRE 608(b) provides that specific instances of misconduct may be "inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness." Section 13-90-101 does not prohibit the admission of evidence under CRE 608(b). See People v. Gillis, 883 P.2d 554 (Colo.App. 1994) (approving introduction of evidence of prior misdemeanor convictions under CRE 608(b) despite provisions of § 13-90-101).

Here, the evidence of prior arrests, misdemeanors, and convictions was not introduced pursuant to § 13-90-101. Rather, this evidence was introduced to show that the claimant was untruthful when he answered the interrogatory concerning prior criminal conduct. The evidence was further introduced to show that the claimant was untruthful when he testified that none of the misconduct occurred prior to March 28, 1995. Under these circumstances, the ALJ did not abuse her discretion in admitting the evidence for the sole purpose of evaluating the claimant's credibility. People v. Gillis, supra.

IT IS THEREFORE ORDERED that the ALJ's order dated March 17, 1998, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________

David Cain

____________________________________

Bill Whitacre

NOTICE

This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.

Copies of this decision were mailed December 29, 1998 to the following parties:

Marvin R. Whitlock, 925 Bluebonnet, Olney, TX 76374

Leon Walker Marlene Walker, T.W.O. Trucking, P.O. Box 1163, Graham, TX 76450-1163

Liberty Mutual Insurance Company, Attn: Hank Hahne, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112

Perry L. Goorman, Esq., 5655 S. Yosemite Street, Suite 200, Englewood, CO 80111 (For Claimant)

David L. Smith, Esq., 1700 Broadway, Suite 1700, Denver, CO 80290 (For Respondent-Asbell McCormick, Inc., CCIA)

Scott M. Busser, Esq., 300 South Jackson, Suite 570, Denver, CO 80209 (For Respondents)

Grocers' Supply Produce Company, Inc., Liberty Mutual (Insurance Company)

Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents-CCIA)

BY: ____________


Summaries of

In re Whitlock, W.C. No

Industrial Claim Appeals Office
Dec 29, 1998
W.C. No. 4-254-861 (Colo. Ind. App. Dec. 29, 1998)
Case details for

In re Whitlock, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF MARVIN R. WHITLOCK, Claimant, v. LEON WALKER…

Court:Industrial Claim Appeals Office

Date published: Dec 29, 1998

Citations

W.C. No. 4-254-861 (Colo. Ind. App. Dec. 29, 1998)