Opinion
W.C. No. 4-217-697
November 17, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined that the claimant failed to sustain his burden to prove that he suffered an injury arising out of and in the course of his employment, and therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.
The claimant testified that he injured his back while driving a concrete mixer truck on April 13, 1994. He testified that while he was backing the truck off a concrete slab, the front wheels dropped ten inches causing him to hit his neck, shoulders and head on the roof of the cab.
The ALJ found that the claimant did not report the injury until July 1, 1994. The ALJ also found that, although the claimant probably suffered some kind of jarring while backing the cement truck, the jarring did not cause the claimant's subsequent back problems. In so doing, the ALJ expressly credited the opinions of Dr. Cook and the testimony of the claimant's co-worker, Mr. Messer.
On review, the claimant contends that the ALJ's factual determinations are not consistent with the record, because he sustained his burden of proof through his testimony and the July 1994 medical reports of Dr. Cook. The claimant also contends that the ALJ applied the wrong legal standard. We reject these arguments.
I.
Initially, we reject the claimant's contention that he was denied due process. The claimant contends that the respondents failed to provide advance notice of their intention to offer a videotaped reenactment of the April incident, and therefore, argues that the ALJ erred in admitting the videotape over the claimant's objection. We disagree.
The Rules of Procedure, Part VIII(I)(1), 7 Code Colo. Reg. 1101-3 at 26-27 (1995) provide that where a party seeks to admit evidence without formal identification, the evidence must be provided to the other party or, if represented, to opposing counsel at least 20 days prior to hearing. As we have previously stated, Rule VIII(I)(1) only pertains to the admission of medical and vocational reports and the records of the employer. Leasure v. Jett Supply Co., W.C. No. 4-145-182, August 8, 1994. Furthermore, Rule VIII(I)(1) is limited to the admission of evidence without formal identification as contemplated by § 8-43-210, C.R.S. (1995 Cum. Supp.). Sanchez v. Prince Hall Village, W.C. Nos. 3-957-740 4-013-707, April 25, 1994.
We do not believe that the respondents' videotaped reenactment of the April 1994 incident is a medical, vocational or employer record. Furthermore, the respondents did not seek to admit the videotape without formal identification. Therefore, Rule VIII(I)(1) is not applicable and the rule did not require the respondents to disclose the videotape to the claimant.
Moreover, as noted by the ALJ, the claimant did not request a disclosure of the videotape by deposition or written interrogatories under Rule VIII(E) (Tr. 36). Consequently, the record does not compel a finding that the claimant was precluded from discovering the videotape. In follows that the respondents had no "continuing duty" under Rule VIII(E)(3) to disclose the videotape in a supplemental or amended discovery response.
The claimant's further arguments on this issue are without merit. The videotape was not "expert testimony," but documentary evidence, offered to illustrate or explain what the respondents' witness, Mr. Harrison observed on the day the employer reenacted the incident. See CRE 1001; People v Avery, 736 P.2d 1233 (Colo.App. 1986). Further, Mr. Harrison was not offered as an expert witness. (Tr. p. 35-36, 49-51; CRE 701 and 702). Regardless, claimant cites no authority, and we know of none, requiring the respondents to disclose which of its endorsed witnesses will testify as expert witnesses. Rather, Rule VIII(A)(1)(b) merely requires that the parties set forth the names and addresses of all witnesses to be presented at the hearing.
Here, the respondents listed Mr. Harrison as a witness on their Response to the claimant's application for hearing. Had the claimant sought further information concerning the content of Mr. Harrison's testimony, he could have requested a discovery deposition as provided by Rule VIII(E). In the absence of such a request, the claimant's due process rights were not implicated.
Neither can we say as a matter of law, that the respondents failed to establish an adequate foundation for the admission of the videotape. CRE 901(b)(1) allows authentication to be established through testimony of a witness with knowledge "that a matter is what it is claimed to be." Such testimony is sufficient even if the witness is not the actual person who ran the camera during the videotaping. See People v. Fueston, 717 P.2d 978 (Colo.App. 1985).
Mr. Harrison stated that the video tape was the actual video taken during his presence. He also stated that he viewed the video tape and that it accurately depicted what he observed during the reenactment. Tr. pp. 37, 45, 48. Therefore, the ALJ could, and did, find that the respondents established the authenticity of the videotape.
In any case, the ALJ's order does not mention the videotape, or indicate that he relied upon it. Instead, the ALJ relied upon the medical evidence from Dr. Cook and the testimony of Mr. Messer. Consequently, even if the ALJ erred in admitting the videotape, the error was harmless, and thus, must be disregarded. Section 8-43-310 C.R.S. (1995 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
II.
Next, the claimant alleges that the ALJ required him to establish his claim "beyond a reasonable doubt." However, the ALJ's order expressly states that he required the claimant to prove a compensable injury by "preponderance of the evidence." (Conclusions of Law; see also Summary Order dated April 4, 1995). Therefore, we are not persuaded that the ALJ applied the wrong legal standard.
Furthermore, the applicable law contains no requirement that the ALJ resolve all "reasonable doubt" in favor of the claimant. To the contrary, § 8-43-201 C.R.S. (1995 Cum. Supp.) provides that the claimant bears the burden of proof by a preponderance of the evidence and that the evidence "shall not be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer." See City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985) (rejecting argument that all reasonable doubts must be resolved in claimant's favor).
We also reject the claimant's argument that the ALJ's findings of fact are not supported by substantial evidence in the record. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Further, it is the ALJ's sole prerogative as the fact finder to determine the credibility of the witnesses, assess the sufficiency and probative value of the evidence, and resolve conflicts in the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The ALJ, did not, and was not required to credit the claimant's testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Instead, the ALJ credited the testimony of Mr. Messer who stated that he did not deliver concrete with the claimant on April 13, as the claimant alleged. (Tr. p. 70). Further, Mr. Messer testified that, if the jarring incident occurred on April 29, 1994, the claimant did not show any signs of back, shoulder or arm injury on that date. (Tr. pp. 72, 73).
Arguably, Dr. Cook's reports dated July 1, 1994 and July 18, 1994 contain some evidence that the claimant's back condition is the result of the April 1994 incident. However, Dr. Cook testified that over the course of treating the claimant he determined that the claimant's condition was attributable to personal stress and not an industrial accident, and Dr. Cook's July 18 report states that the claimant suffers from a myofascial pain disorder secondary to a sleep disorder caused by personal stressors. (Dr. Cook depo. pp. 14-16). The ALJ implicitly resolved the conflicts in Dr. Cook's records against the claimant by crediting Dr. Cook's later diagnosis of personal stress. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit all, part of none of a witness testimony).
Accordingly, the evidence which the ALJ found credible and persuasive supports his finding that the claimant failed to establish a causal relationship between his medical problems and the April 1994 incident. The claimant's further arguments to the contrary do not alter our conclusion. Therefore, we must uphold the ALJ's order dismissing the claim. Section 8-41-301(1)(c), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988) (failure to establish a causal connection between the injury and the employment is fatal to a claim).
IT IS THEREFORE ORDERED that the ALJ's order dated April 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 November 17, 1995 to the following parties:
Robert E. Underhill, 3113 Weld County Road, #17, Brighton, CO 80601
Ready Mix Concrete Co., 4396 Washington, St., Denver, CO 80216-3573
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
George T. Ashen, Esq., 1226 Bannock St., Denver, CO 80204
(For the Claimant)
BY: _______________________