Opinion
W.C. No. 4-463-229
May 8, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which permitted the respondents to withdraw an admission of liability based on fraud, and determined the respondents overcame the impairment rating of the Division-sponsored independent medical examination (DIME) physician by clear and convincing evidence. We affirm.
The ALJ found the claimant fraudulently misrepresented his condition to the treating physician commencing in September 2000. Specifically, the treating physician issued a report in which she stated that activities which two witnesses observed the claimant performing were "totally contradictory" to representations which the claimant made to the physician concerning his physical condition. As a result, the physician stated she would have lifted the claimant's restrictions and released the claimant to regular employment on September 1, 2000, had the claimant accurately portrayed his condition. (Reports of Dr. Fall dated July 23, 2001; February 4, 2002). The treating physician's statements were corroborated by the testimony of Dr. McCranie, a physician who examined the claimant at the respondents' request. (Finding of Fact 16). Based on this evidence the ALJ found the respondents were fraudulently induced to admit for temporary total disability (TTD) benefits subsequent to September 1, 2000, and were entitled to recoup subsequent TTD payments.
The ALJ further found the DIME physician's 29 percent whole person impairment rating was overcome by clear and convincing evidence. This determination was based largely on the testimony of Dr. McCranie, who opined the claimant sustained 2 transverse process fractures, not 3 as found by the DIME physician. Further, Dr. McCranie opined the reduced range of motion measured by the DIME physician was non-physiologic and overstated the claimant's impairment. Thus, the ALJ awarded permanent partial disability benefits based on Dr. McCranie's 10 percent whole person impairment rating.
I.
On review, the claimant asserts there is insufficient evidence to support the finding that the claimant willfully misrepresented his condition to the treating physician, or concealed information which he ought to have disclosed. The claimant asserts there is no evidence that he could have known any of the activities which the witnesses observed him performing exceeded his work restrictions. This argument is without merit.
The elements of fraud were correctly set forth by the ALJ in his order. Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937). The existence of fraud is a question of fact for the ALJ. Weber v. Montrose County, W.C. No. 3-107-609 (February 14, 1997).
Because the issue is one of fact, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. Where a party fails to procure a transcript of the hearing, we must presume the ALJ's findings are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Here, the claimant failed to procure a complete transcript. The only transcribed testimony is that of Allison Diamond, one of the witnesses who observed the claimant's physical activities. Missing from the record is the testimony of the claimant and Dr. McCranie. Because the ALJ explicitly relied on Dr. McCranie's testimony concerning the claimant's activities and whether or not the activities exceeded the claimant's restrictions, we must presume there is sufficient evidence to support the ALJ's inference that the claimant deliberately concealed his true physical capacity. In any event, this inference is supported by plausible inferences drawn from the treating physician's reports. Further, Diamond testified the claimant made statements to her which implied the claimant was "extending" his workers' compensation benefits by falsely telling the doctors that he was hurting. (Partial Tr. P. 26).
II.
The claimant next contends the ALJ erred in finding the respondents overcame the DIME physician's rating by clear and convincing evidence. Specifically, the claimant asserts that Dr. McCranie's testimony was insufficient to support the order.
However, the question of whether the respondents overcame the DIME physician's rating was one of fact for the ALJ. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, it was for the ALJ to assess the weight and credibility of Dr. McCranie's testimony. Metro Moving and Storage Co. v. Gussert, supra. Because the claimant failed to procure a transcript, we must presume the ALJ properly relied on Dr. McCranie's testimony in finding the DIME physician's rating was overcome. Nova v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated July 2, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 8, 2003 to the following parties:
Colin Anderson, 28628 Aspen Dr., Conifer, CO 80433
Cloverleaf Construction, Inc., P. O. Box 1475, Castle Rock, CO 80104-1475
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Bonner E. Templeton, Esq., 3801 E. Florida Ave., #900, Denver, CO 80210 (For Claimant)
Dawn M. Yager, Esq., 999 18th St., #3100, Denver, CO 80202
By: A. Hurtado