Opinion
W.C. Nos. 4-765-974 4-781-396 4-740-418.
March 17, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 5, 2009 that denied the claimant's request for additional temporary disability benefits and denied the claimant's request for penalties. We affirm.
Three workers' compensation claims were consolidated for hearing. The claimant sustained a compensable injury to his low back on August 18, 2002. This relates to the claim bearing W. C. No. 4-765-974. The claimant was referred for treatment and subsequently released to return to work. The respondents had treated the low back injury as a "medical only" claim for six years.
It was the claimant's position at hearing that there was only one low back injury and that occurred on August 18, 2002. The claimant asserted that there were no subsequent significant injuries. The claimant did not request any benefits on the claim bearing W.C No. 4-781-396. On the claim bearing W.C. No. 4-740-418 relating to an October 26, 2007 accident the ALJ found the claimant established that he sustained an aggravation of his pre-existing condition and found the insurer liable for medial benefits.
Regarding the August 18, 2002 injury, the ALJ determined that the claimant had failed to establish that he lost any time from work or suffered any impairment. The ALJ denied the claim for temporary disability benefits. The ALJ also denied any penalty against the respondents for an alleged failure to notify the Division of Workers' Compensation (Division). The ALJ found that the compensable August 18, 2002 injury did not result in any lost time and it had not been shown that there was any impairment. Therefore, the ALJ concluded that the respondents were not required to report the injury to the Division under 8-43-101, C.R.S. 2009. The ALJ also found that the claimant failed to meet his burden of proof that he communicated to his employer that he lost time from work.
I.
The claimant first contends that the ALJ erred in finding that the claimant did not miss work between October 29, 2002 and November 14, 2002 as a result of the August 18, 2002 injury. The claimant argues such finding is not supported by substantial evidence and the ALJ erred in failing to resolve a conflict in the evidence on this issue.
Here, the ALJ determined that during the time at issue the claimant did not miss time from work, but came in and did alternative light work, such as shredding paper, and was paid his fully salary. The ALJ found that when the claimant could not sit or stand, he was still required to come in for his work from 8:00 a.m. to 4:00 p.m. even when his pain caused him to lie on the floor.
The claimant argues that the ALJ based these finding on the claimant's testimony, but that his own testimony was so confusing that it does not support the ALJ's findings of fact. As we understand the claimant's argument, he contends, at least in part, that his testimony was so confused that it cannot be considered substantial evidence supporting the ALJ's determination.
Here, the claimant testified that during the period October 29, 2002 through November 4, 2002, the time at issue, he received his full salary. Tr. at 46-47. The claimant further testified that for the time period at issue he did not apply for any leave because it was mandated that he come to work. Tr. at 47. The claimant testified that during the time period at issue he was still doing his work at Qwest. Tr. at 62.
We concede that the claimant's testimony as a whole can be viewed as confusing. However, we disagree with the claimant that that his testimony was so unreliable that as a matter of law it cannot be considered substantial evidence supporting the ALJ's determination. To the extent the claimant's testimony was contradictory, as the claimant argues, the ALJ was free to credit those portions he found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Moreover, the part of the claimant's testimony that he did not miss time from work is supported by other testimony and evidence in the record. The claims adjuster testified, from a review of the claims file, that when a prior adjuster had talked with the claimant he had stated that his time off was not related to the August 2002 injury and that there was no indication that there was any lost time related to his employment. Tr. at 79-80. The claims adjuster specifically testified that the claimed lost time from October 29, 2002 through November 16, 2002 was not related to employment. Tr. at 81.
In an exhibit admitted without objection the claimant was noted as stating to a claims adjuster on November 6, 2002 that while he was currently out of work it was not related to the August 2002 claim. Exhibit 18 at 5. We further note this same document is contained in an exhibit submitted by the claimant. Exhibit J at 54.
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 defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). In our view, there was substantial evidence supporting the ALJ's determination that during the time at issue the claimant did not miss time from work.
The claimant contends the ALJ failed to address the documentary evidence, which he contends indicates that the claimant missed work during the time at issue. The claimant contends that the ALJ failed to address conflicts between his testimony that he did not miss work and the documentary evidence that suggests that he did miss work.
The documentary evidence in question is case notes from Sedgwick, which deal with a request for short term disability (STD) benefits bought by the claimant in 2002. Exhibit 19. In our view, the notes from Sedgwick are capable of various interpretations and do not compel a conclusion that the industrial injury caused a loss of time from work or even that there was a loss of time from work. In our opinion, the ALJ could rely on the claimant's own testimony, which cast doubt on the casual connection between the claimant's industrial injury and the requested period of STD benefits. Tr. at 47.
In any event, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
II.
The claimant next contends that the ALJ's finding that the respondents were not presented with notice of a lost time injury regarding the August 18, 2002 accident is not supported by substantial evidence and the ALJ failed to resolve a conflict in the evidence.
Section 8-43-101, C.R.S. 2009 requires every employer to report injuries for lost time or injuries resulting in permanent physical impairment to the Division within ten days after notice or knowledge of the same. The claimant contends the respondents were on notice of the alleged lost time injury, which triggered an obligation to report the injury to the Division. The claimant then contends the respondents' failure to give notice tolled the statute of limitations for filing a claim for benefits and subjected the insurer to penalties pursuant to 8-43-203(2)(a), C.R.S. 2009.
Section 8-43-203(2)(a) provides as follows:
If such notice is not filed as provided in subsection (1) of this section, the employer or, if insured, the employer's insurance carrier, as the case may be, may become liable to the claimant, if the claimant is successful on the claim for compensation, for up to one day's compensation for each day's failure to so notify; except that the employer or, if insured, the employer's insurance carrier shall not be liable for more than the aggregate amount of three hundred sixty-five days' compensation for failure to timely admit or deny liability.
The question of whether the employer was placed on notice sufficient to trigger its reporting duties is largely one of fact. Wallace v. Stone Gate Homes, W. C. No. 4-650-504 (April 18, 2006); Doughty v. Poudre Valley Health, W. C. No. 4-488-749 (January 13, 2003). As noted above we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8).
Pursuant to § 8-43-203(1)(a), C.R.S. 2009, an employer or, if the employer is insured, the insurer, must provide notice admitting or denying liability within twenty days of the date it becomes aware of the employee's alleged disabling injury. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1232 (Colo. App. 2001). As noted above, if such notice is not timely filed, the employer or insurer "may become liable to the claimant, if the claimant is successful on the claim for compensation, for up to one day's compensation for each day's failure to so notify." Section 8-43-203(2)(a).
Generally, a claim is successful when the employer's liability for disability benefits is established. See Eachus v. Cooper, 738 P.2d 383, 385 (Colo. App. 1986) (liability for temporary disability benefits sufficient to invoke penalty). In Smith v. Myron Stratton Home, 676 P.2d 1196, 1201 (Colo. 1984), the court held that a claimant is "successful" on a claim if he establishes the respondents' liability for compensation. Further, in Racon Construction Co., v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo. App. 1989), the court concluded that medical benefits are not a form of "compensation" within the meaning of the predecessor statute. Rather, the Racon court held that the phrase "successful on the claim for compensation" means that the claimant has established the respondents' liability for disability benefits. See also Hamby v. Bacon Drywall Inc., W. C. No. 4-439-006 (May 8, 2002); Bryne v. City of Colorado Springs, W.C. No. 3-863-711 (April 7, 1989). We adhere to our prior conclusions.
Here, the ALJ determined that the claimant had failed to establish that he sustained any temporary total temporary partial disability as a result of his compensable claim and we have affirmed that determination. Therefore, we conclude that the ALJ did not error in dismissing the claim for penalties for the insurer's alleged failure timely to admit or deny liability. Racon Construction Co., v. Industrial Claim Appeals Office, supra.
Moreover, in our view the ALJ's determination that the respondents were not presented with notice of a lost time injury regarding the August 18, 2002 accident is supported by substantial evidence in the record. The claimant's own testimony, as outlined above, supports the conclusion that the respondents were not on notice of a lost time injury. Additionally, the notes of the claims adjuster support the ALJ's determination that the respondents were not on notice of a lost time injury. Ex. J at 54; Ex. 18 at 5, 9.
IT IS THEREFORE ORDERED that the ALJ's order October 5, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
GODWIN E ABIAKAM, AURORA, CO, (Claimant), QWEST, DENVER, CO, (Employer), INSURANCE CO OF PENNSYLVANIA, Attn: DEBBIE BAIRD/AMY KINSEY, C/O: SEDGWICK CMS, INC., DENVER, CO, (Insurer), SILVERN LAW OFFICES, PC, Attn: KARA T. KIRKEDAHL, ESQ., WADSWORTH BLVD., WHEAT RIDGE, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, PC, Attn: MARK H. DUMM, ESQ., DENVER, CO, (For Respondents).