Substantial Evidence

It is well-known in workers’ compensation claims that it is an administrative law judge (“ALJ”) who resolves conflicts in evidence presented, determines its probative value, and then makes determinations based on that evidence. When an ALJ’s determinations are supported by substantial evidence, those decisions are binding upon review. In Kazazian v. Vail Resorts, the Industrial Claims Appeals Office (“Panel”) explains that Claimant’s challenges to an ALJ’s decision fails, because the ALJ’s findings and decisions were all supported by “substantial evidence.”

The facts in Kazazian are as follows: In April 2013, Claimant fell at work and hit her head. As a result, she was diagnosed with a cochlear concussion with no significant injury to her skull. In August 2013, Claimant was placed at maximum medical improvement (“MMI”) with 5% loss of hearing in one ear from the schedule of disabilities per section 8-42-107(2)(ii) C.R.S. Although at MMI, Claimant claimed to suffer persisting hearing loss, tinnitus and decreased cognition. In May 2019, Claimant underwent a Division IME review, which noted the hearing loss and tinnitus, but confirmed the previous date of MMI. Claimant then requested that an ALJ find she was not at MMI in 2013. Additionally Claimant sought TTD benefits and a finding that her injury was not located on the schedule of disabilities. The ALJ decided that Claimant was at MMI with a scheduled injury and that she would not receive TTD benefits. Claimant appealed each of these determinations.

In appealing an ALJ’s decision, the Panel or a reviewing court may not interfere with the ALJ’s determinations, unless those determinations were not based in substantial evidence in record. Here, ALJ determined that Claimant did not produce clear and convincing evidence to overcome the DIME physician’s findings that MMI had been reached. Next, the ALJ found that Claimant provided no testimony regarding any loss – or reason for loss – of earning capacity. Claimant asserted she could not perform regular work between April and August, but payment records indicated otherwise. All of this supported the ALJ’s decision to deny TTD benefits. Finally, Claimant did not prove by a preponderance of the evidence that her permanent injury was not located on the schedule of disabilities. Evidence at the hearing was inadequate to show permanent disability was located on a part of the body not on the schedule.

The Panel found that the ALJ relied on substantial evidence for each of the determinations made at hearing. The Panel cited two cases which explained its reasoning that upon review, it would not interfere with the ALJ’s credibility determinations unless there had been extreme circumstances under which the evidence credited is overwhelmingly rebutted. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. ICAO, 973 P.2d 624 (Colo. App. 1997). The ALJ’s determinations were affirmed, as the Panel could not find such extreme circumstances to overcome decisions made based on substantial evidence.

Kazazian v. Vail Resorts, W.C. No. 4-915-969 (ICAO, July 6, 2020)

Want to know more? Contact Eric Pollart at epollart@pollartmiller.com or 877-259-5693.

August 2020 Newsletter

2020-08-27T14:58:00-06:00