Opinion
W.C. No. 3-110-743
January 16, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated January 24, 1995. We affirm.
This matter was previously before us. On May 23, 1995, we set aside the ALJ's prior order dated January 24, 1995, where he determined that the claimant fraudulently misrepresented his physical condition to the treating physicians, which induced the respondent to file three General Admissions of Liability for workers' compensation benefits. As a consequence, the ALJ declared the admissions void ab initio pursuant to Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981).
The ALJ's order was entered following a hearing on December 22, 1994, that neither the claimant nor a representative in his behalf attended. On appeal, the claimant alleged, inter alia, that he was unable to attend the December 22 hearing due to circumstances beyond his control. Therefore, we remanded the matter for further proceedings concerning the credibility of the claimant's factual assertions about his failure to attend the December 22 hearing, and a determination of whether the claimant was entitled to a new hearing.
On remand the ALJ conducted an additional hearing. In an order dated September 22, 1995, the ALJ found that the testimony offered by the claimant concerning his failure to attend the prior hearing was not credible. Consequently, the ALJ determined that the claimant failed to establish that he was denied due process in the January 24 order, and thus, concluded that the claimant was not entitled to a new hearing. Then, pursuant to our order of remand, the ALJ recertified the record to us for further review.
We shall now proceed to consider the claimant's remaining arguments concerning the ALJ's order dated January 24, 1995. Initially, we note that the September 22 order effectively denies the claimant's earlier motion for a new hearing. Therefore, the claimant's contention that the January 24 order was prematurely issued in view of his motion for a new hearing, is moot.
The claimant's remaining contentions essentially argue that the record does not support the ALJ's findings of fact. Specifically, the claimant contends that there is no evidence to support the ALJ's finding that the claimant "fraudulently" misrepresented his condition. Rather, the claimant contends that his misrepresentations, if any, were the result of a "mistake" in his "perception of his medical condition." Therefore, the claimant contends that the admissions should not have been declared void ab initio. The claimant also contends that neither the attending physicians nor the respondents relied upon the alleged misrepresentations. We reject the claimant's arguments.
The determination of whether the claimant fraudulently provided materially incorrect information which was relied upon to induce the filing of an admission of liability is a question of fact. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985); Vargo v. Industrial Commission, supra. Consequently, the ALJ's findings are binding if supported by substantial evidence and the ALJ's plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). In resolving the issue, the ALJ may base his decision on inferences drawn from circumstantial evidence, as well as direct evidence. See Electric Mutual Liability Insurance Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964); Vargo v. Industrial Commission, supra.
Further, in applying the substantial evidence test, we cannot consider evidence which was not part of the record before the ALJ. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we have not considered the affidavit submitted by the claimant on appeal or the claimant's assertions concerning the testimony of witnesses who did not testify before the ALJ.
Moreover, the claimant has not provided a transcript of the December 22, 1994 hearing. Under these circumstances, we must presume that there is substantial evidence in the record to support the ALJ's finding that the claimant fraudulently misrepresented his physical condition, and that the misrepresentations induced the respondent to file the admissions of liability. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). We have also reviewed the deposition testimony of Dr. Meason, Dr. Quackenbush, Dr. Sammson, and Dr. Gage which the ALJ expressly relied upon. Contrary to the claimant's argument, the deposition testimony contains substantial evidence that the claimant misrepresented his physical condition to the attending physicians, especially with regard to paralysis in the left lower extremity. This evidence also indicates that these physicians relied upon the misrepresentations to diagnose and treat the claimant's condition. (Gage depo. pp. 11, 12, 15, 19, 23, 31-33, 38; Meason depo. pp. 11, 15, 22; Sammons depo. pp. 18, 24; Quackenbush depo. pp. 15, 16, 19, 22). Furthermore, the ALJ could, and did infer from this evidence that the claimant knowingly and wilfully misstated his physical condition. (Shepley report October 1, 1994; Gage depo. p. 10; Meason depo. p. 13). Therefore, the record supports the ALJ's finding that the claimant's misrepresentations were fraudulent and not the result of mistake. Kraus v. Artcraft Sign Co., 710 P.2d 481.
IT IS THEREFORE ORDERED that the ALJ's order dated January 24, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed January 16, 1996 to the following parties:
Robert E. Malone, P.O. Box 553, Delta, CO 81416-0553
Louisiana Pacific Corp., P.O. Box 1269, Montrose, CO 81402
Louisiana Pacific Corp., P.O. Box 4000-98, Northern Division, Haden Lake, ID 83835
Sam Cooper Hill, Esq., P.O. Box 0876, Hotchkiss, CO 81419-0876 (For the Claimant)
Starr Keso, Esq., 1010 Ironwood Dr., P.O. Box 1312, Coeur D'Alene, ID 83816-1312 (For the Respondents)
BY: _______________________