Opinion
W.C. No. 4-603-786.
May 17, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated December 1, 2005 that denied permanent partial disability benefits and further medical benefits. We affirm.
A hearing was held on the issues of whether the claimant was a minor at the time of his injury, whether he is entitled to medical benefits following maximum medical improvement, and whether the respondents overcame the Division-sponsored independent medical examination (DIME). Following the hearing the ALJ entered findings of fact that may be summarized as follows. At the time of his hire the claimant, Marcos Santiago, provided the employer with a social security number and a date of birth of December 22, 1970. Although other of the employer's records record the claimant's year of birth variously as 1972, 1977, and 1980, the date most frequently entered in those records is December 22, 1970. Santiago was injured on February 8, 2003 and submitted a report of the injury again giving his date of birth as December 22, 1970. The medical records of Dr. Thiel, the authorized treating physician, also reflect this date of birth. In August 2003 Santiago was discharged from employment when he informed the employer that he had falsified his identity and that his name was actually Ruben Zirate. He also stated that his date of birth was different from that previously given and that he had no social security number. The respondents filed a final admission of liability, to which Santiago objected and obtained a DIME. The DIME physician's report stated that Santiago was 22 years old, although the employment records indicated that he was really either 31 or 33 years old. At the hearing a person purporting to be the claimant testified that his name was Ruben Zirate and that he had provided the employer with the false name Marcos Santiago. He also testified that he was born on July 3, 1983, that he has no social security number, that he is not married and has no children. The ALJ expressly rejected as unpersuasive the testimony of Zirate that he was actually Santiago and the injured worker in this claim. The ALJ also found that the 22 year old person examined by the DIME physician was not Santiago, who is at least 30 years of age.
Based upon his factual findings the ALJ concluded that the respondents had overcome the DIME report by clear and convincing evidence. Relying upon the report of the authorized treating physician that the claimant had no permanent impairment, the ALJ denied further permanent partial disability benefits and further medical benefits.
Separate petitions to review were filed by "[t]he claimant, Ruben Zirate aka Marcos Santiago," and by Santiago under his own name. Zirate and Santiago then filed separate briefs in support of the respective petitions to review. Zirate argues that there is no support in the record for the ALJ's factual finding that he is not the person who was injured using the name Marcos Santiago. Santiago argues that once the ALJ found that the actual claimant was not present at the hearing it was a due process violation to adjudicate any entitlement to benefits. We are unpersuaded that the ALJ erred.
Zirate first contends that the ALJ misapplied the burden of proof by requiring him to prove that he was the injured worker employed by Excel Corporation under the name of Marcos Santiago. Although we agree with the claimant that the burden was on the respondents to overcome the DIME by clear and convincing evidence, we do not believe that the ALJ erred in this regard. At the commencement of the hearing the parties and the ALJ briefly discussed the issues to be heard, and concluded that the respondents were attempting to overcome the DIME, and the claimant was asserting entitlement to medical benefits following maximum medical improvement and to additional benefits because he was a minor at the time of his injury. The ALJ summarized that the burden to show that he was a minor was on the claimant, as was the burden to show entitlement to medical benefits, and the burden was on the respondents to overcome the DIME. Tr. at 7. He then stated that he would "ask the Respondents to go first." Tr. at 7. They did so, and called Zirate as their only witness.
In concluding that the respondents had overcome the DIME, the ALJ correctly set forth the applicable law. He noted that the burden was on the respondents to overcome the DIME by clear and convincing evidence and that that quantum of evidence required a showing that it was "highly probable" that the DIME physician's impairment rating was incorrect. He correctly cited applicable law in support of these propositions and concluded that, because the DIME physician had not examined Marcos Santiago, it was highly probable that the impairment rating he calculated for the patient he did examine was not Santiago's rating. There is no basis in the record to disturb the ALJ's conclusion.
The dispositive findings underlying the ALJ's conclusion that the respondents had overcome the DIME report by clear and convincing evidence are that Zirate was not the worker injured under the name of Marcos Santiago and, relatedly, that Santiago was not the patient examined by Dr. Crosby prior to writing the DIME report. The question whether the respondents have overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This is true despite the elevated standard of proof required to overcome a DIME: "[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied." Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id. § 8-43-301(8), C.R.S. 2005. 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 regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The existence of evidence in the record 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) (not selected for publication). Here, as it was his sole prerogative to do, the ALJ weighed Zirate's testimony and rejected it as unpersuasive. The ALJ's findings and conclusions are reasonable inferences drawn from the record and we may not disturb the order.
Finally, Santiago has filed a separate brief and argues, presumably in the alternative, that if he was not present at the hearing then his right to due process was violated by the ALJ's adjudication of his entitlement to benefits in his absence. It is true that due process protections require that a person be given adequate notice of the proceeding and its nature, and a fair opportunity to be heard. Colorado Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965). Assuming that these protections extend to the party's right to be present at the proceeding, Santiago's due process rights were not violated in this case. See Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435 (1919) (leaving open the question whether a party has a constitutional right to be present in a civil proceeding if she is represented by counsel). Compare Kulas v. Flores, 255 F.3d 780, 786 (9th Cir. 2001) ("In a civil suit, the parties do not have a constitutional right to be personally present during trial.") with Arrington v. Robertson, 114 F.2d 821, 823 (3d Cir. 1940) (due process clause guarantees the right to be present in person or by counsel at every stage of civil proceeding).
Santiago was represented by counsel, who appeared at the hearing with Zirate, and who asserted that the latter was Santiago. His counsel then litigated the latter's entitlement to benefits as Santiago. He did not raise any contention that there was doubt about the identity of Santiago, that another individual claimed to be Santiago, or that, if the identity of the claimant was disputed, Santiago had not received notice of the hearing and an opportunity to be present. Under these circumstances, his absence from the hearing was a waiver of the right to appear, and he may not be heard to assert that his due process right to be present at the proceeding was abridged. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. 1993) (party may not complain of invited error for which the party is responsible); Morgan County Department of Social Services v. J.A.C., 791 P.2d 1157 (Colo.App. 1989) (same).
IT IS THEREFORE ORDERED that the ALJ's order dated December 1, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Marcos Santiago, Brush, CO, Patty Malavasic, Workers' Compensation Coordinator, Excel Corporation, Fort Morgan, CO, Amy Kelley, Crawford Company, Englewood, CO, Britton Morrell, Esq., Greeley, CO, (For Claimant).
Tama L. Levine, Esq., Denver, CO, (For Respondents).