Opinion
W.C. No. 4-224-016
October 31, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), insofar as the ALJ found that the claimant sustained a compensable injury and awarded benefits based upon an average weekly wage of $280. We affirm.
The ALJ credited the claimant's testimony that she fell off a ladder while employed by the respondent as a painter. The claimant testified that, although the injury occurred on the first or second day of her employment, she was to earn $280 per week. (Tr. p. 10).
On review, the respondent contends that the ALJ's order is contrary to the "overwhelming evidence" which establishes there was no employee-employer relationship between the claimant and the respondent. In support of this proposition the respondent points to an internal contradiction in the claimant's testimony and the testimony of the respondent's witnesses. We find no error.
Pursuant to § 8-43-301(8), C.R.S. (1995 Cum. Supp.), we are obliged to uphold the ALJ's order if supported by substantial evidence in the record. Under this standard, it is for the ALJ to assess the weight, credibility, and inferences to be drawn from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In particular, the ALJ is free to resolve internal inconsistencies in the testimony of an individual witness, and to resolve conflicts in the testimony of multiple witnesses. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Further, we may not interfere with the ALJ's order based upon the number of witnesses appearing for or against a particular proposition. See Jachetta v. Milano, 146 Colo. 100 [ 147 Colo. 100], 362 P.2d 1065 (1961).
Here, the record certainly contains conflicting evidence and testimony concerning whether or not the claimant was employed by the respondent at the time of the injury. However, the ALJ resolved the conflicts in the evidence in favor of the claimant, and none of the respondent's arguments convinces us that the ALJ erred as a matter of law in doing so. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Further, the claimant's testimony supports the ALJ's determination of the average weekly wage. The mere fact that the evidence might have supported a different wage provides no basis for concluding that the ALJ abused his wide discretion in determining the average weekly wage. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
For her part, the claimant asserts that we should award attorney fees because the respondent failed to file a bond in accordance with the ALJ's order, and because the respondent filed a "brief lacking in merit." In support of her position, the claimant cites § 8-43-301(14), C.R.S. (1995 Cum. Supp.).
Initially, we note that § 8-43-301(14) does not afford us authority to award attorney fees based upon the respondent's failure to file a bond. Rather, § 8-43-301(14) concerns an attorney's action in filing a "petition to review or brief which is not well grounded in fact and warranted by existing law, or a good faith argument for the extension, modification, or reversal of existing law."
Neither do we find the action of respondent's counsel in filing of the petition to review and brief to be so lacking in merit that it may be classified as not well grounded in fact or law. When counsel originally filed the petition to review and brief the matter was still pending before the ALJ. At that point the ALJ retained jurisdiction to "amend or alter the original order or set the matter for further hearing." Section 8-43-301(5), C.R.S. (1995 Cum. Supp.). Thus, in our view, counsel for the respondent could reasonably argue to the ALJ that he erred in his assessment of the weight of the evidence and the credibility of the witnesses.
The respondent's decision to persist in the appeal once the ALJ decided against amending his order poses a different problem. As we have already indicated, our standard of review is quite restrictive, and we lack the authority to substitute our judgment for that of the ALJ concerning factual determinations.
However, in Halliburton Services v. Miller, supra, our Supreme Court indicated that an ALJ's credibility determination might be erroneous as a matter of law if the testimony of a witness was "overwhelmingly rebutted by hard, certain evidence directly contrary to the testimony." On the facts of this case, we believe that the respondent at least made a plausible argument that the claimant's testimony was incredible as a matter of law in view of the number of witnesses which appeared against the claimant, and the testimony of one witness who recalled the claimant saying "wouldn't it have been nice to fall off a ladder and live off workmen's comp awhile?" Cf. Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991) (mere fact that findings of fact are rarely overturned on appeal does not negate the fact that parties have a statutory right to review of findings of fact).
IT IS THEREFORE ORDERED that the ALJ's order, dated March 23, 1995, is affirmed.
IT IS FURTHER ORDERED that the claimant's request for attorney fees is denied.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed October 31, 1995 to the following parties:
Celestial Jo Dwyer, 172 N. College Ave., Ft. Collins, CO 80524
Devoe Custom Painting, 1304 N. College Ave., Ft. Collins, CO 80524
Richard K. Blundell, Esq., 800 Eighth Ave., Ste. 202, Greeley, CO 80631 (For the Respondent)
Thomas H. Moore, Esq., 425 W. Mulberry, Ste. 112, Ft. Collins, CO 80521-2896 (For the Claimant)
By: ______________________________