In the Matter of Claim of Marsh v. City of Arvada, W.C. No. 4-650-300 (CO 4/26/2006), W.C. No. 4-650-300
| Decision Date | 26 April 2006 |
| Docket Number | No. 4-626-043.,W.C. No. 4-650-300,4-626-043. |
| Parties | IN THE MATTER OF THE CLAIM OF PAUL MARSH, Claimant, v. CITY OF ARVADA, Employer, and SELF-INSURED, Insurer, Respondents. |
| Court | Colorado Supreme Court |
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated January 17, 2006 that denied the claim for compensation. We affirm.
The claimant sought and obtained a hearing on the issues of compensability, medical benefits and temporary disability benefits. Following the hearing, the ALJ entered factual findings that may be summarized as follows. The claimant worked in the water department of the City of Arvada from 1982 to 1992 and then as an equipment operator until 2004, when his employment was terminated on account of his physical inability to perform the work. The claimant sustained two prior neck injuries, one in a motor vehicle accident when he was a child and the other when he served in the military in the war in Vietnam, where he also sustained a gunshot wound to the leg. He also had a history of carpal tunnel syndrome and knee problems, and suffered from diabetes, peripheral neuropathy, coronary artery disease, myocardial infarction, hyperlipidemia, post traumatic stress disorder, and possibly emphysema. The claimant had received an award of disability benefits from the Veterans Administration. In 1999 x-rays of the claimant's shoulder disclosed degenerative changes, and in 2001 he experienced a painful "pop" in his right knee. In 2002 he was diagnosed with degenerative changes in his thoracic spine, along with changes in his left ankle and in his hands. In August 2004 the claimant was examined by Dr. Parsons, who diagnosed severe degenerative disease in the claimant's cervical spine. Dr. Parsons opined that the claimant's problems were caused by age and not by his work. Drs. Healey and Paz performed independent medical examinations of the claimant. The former diagnosed chronic cervical pain caused by the claimant's degenerative disc disease, which the doctor stated was aggravated by work. He also diagnosed degenerative problems in the claimant's knee, which he also stated was permanently aggravated by the claimant's work. Dr. Paz, who conducted a records review of the claimant's case, opined that the claimant's problems were not caused by work. The ALJ expressly credited Dr. Paz's opinions as credible. Based upon her factual findings the ALJ concluded that the claimant had failed to prove that he sustained a work-related injury or occupational disease.
The claimant appealed and argues on appeal that his constitutional right to access to the courts was denied by the Division's failure to disclose the identity of the ALJ prior to the hearing, that the ALJ was impermissibly biased against the claimant because of his use of alcohol, that the ALJ lost jurisdiction over the claim by failing to enter her order within 30 days of the conclusion of the hearing, that she erred in certifying Dr. Paz as an expert in occupational medicine and in crediting his opinions, and that she erred in her application of the law relevant to the contraction of an occupational disease. We disagree that the ALJ committed reversible error.
The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2004. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and her determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995).
Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo. App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Moreover, the ALJ's order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Furthermore, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers' compensation claims and it was the ALJ's sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda (Colo. App. No. 92CA1576, July 1, 1993) (). In resolving inconsistencies the ALJ may credit all, part or none of an expert's testimony, and the ALJ's failure to cite an expert's opinion inherently reflects that the ALJ did not find it persuasive. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
In the present case the ALJ's findings underlying her conclusion that the claimant failed to show a compensable injury or occupational disease are amply supported by the record. The question of compensability in this case essentially turned upon the ALJ's resolution of the conflicting medical evidence and testimony. Both F. Mark Paz, M.D. and Edwin M. Healey, M.D. testified at the hearings, offering starkly conflicting opinions concerning the question whether the claimant's physical condition resulted from his work duties. The ALJ expressly credited the opinions of Dr. Paz, who testified that his neck condition was not caused by his years of work with the respondent employer. Tr. (11/9/2005) at 13. He further testified that the claimant's previous injuries and his underlying health problems played a "significant role" in the development of his condition. Tr. (11/9/2005) at 17. He explained the physiological mechanisms leading to osteoarthritis and the contribution to that condition attributable to the claimant's use of alcohol and tobacco. Tr. (11/9/2005) at 18-20. Ultimately, it was Dr. Paz's opinion that neither the claimant's neck condition nor any of the health problems related to "a lot of other body parts" were related to his work. Tr. (11/9/2005) at 21. Thus, he stated the opinion that "it cannot be establish (sic) that 23 years of working anywhere would have contributed to" his condition. Tr. (11/9/2005) at 26. He reiterated that "[his] opinion is that it's not 23 years of work for the City of Lakewood (sic) which caused his current complaint." Tr. (11/9/2005) at 27. Although the claimant has noted ample conflicting evidence in the record, and has pointed to a variety of factors arguably undermining the persuasive force of Dr. Paz's opinions, the doctor's testimony nonetheless constitutes substantial evidence supporting the ALJ's order.
Moreover, the ALJ applied the correct...
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