The Panel cannot interfere with ALJ credibility determinations except in extreme circumstances

In Venagas, the claimant worked for the employer as a roofer. On January 17, 2018, the claimant was placing material on a steep roof. The rope securing him to the roof broke and he fell 30 feet to the ground. The claimant sustained injuries to his head, his right shoulder, his pelvis, his right knee, and subsequently a pulmonary embolism. He underwent two surgeries to repair multiple injuries to his pelvis and was hospitalized for two months. Following further  conservative  treatment , the  claimant  was  noted  to  have  achieved  a substantial recovery and was placed at maximum medical improvement by his treating physician on December 26. 2018.

Dr. Hughes performed a Division Independent Medical Examination (Division IME) and assigned an impairment rating. Dr. Hughes assigned a 7% whole person rating, 17% lower extremity hip rating, and a 6% right upper extremity rating. The respondents filed an admission admitting to the Division IME ratings of 7% whole person, 17% lower extremity, and 6% right upper extremity. The claimant submitted an application for hearing requesting permanent total disability benefits, additional disfigurement benefits, conversion of extremity ratings to those of the whole person, and a challenge to the impairment ratings provided by the Division IME evaluation. Following a hearing on December 16, 2019, the ALJ determined the claimant was not entitled to permanent total benefits, increased the amount of disfigurement benefits, and ruled the permanent impairment rating provided by Dr. Hughes in his Division IME report had not been overcome. The ALJ also denied the claimant’s claim for conversion of his hip rating to whole person. The ALJ concluded the permanent impairment should be compensated on the basis of a 6% upper extremity rating, a 17% lower extremity rating, and a 7% whole person rating.

The claimant appealed only the determinations pertinent to conversion of the permanent impairment ratings. The ALJ ruled the loss being measured by the fracture of the acetabulum was that of an impairment of the function of the hip and the right leg. Because loss of the use of the leg at the hip was included on the schedule of injuries in § 8-42-107(2)(w), the ALJ concluded that loss was appropriately compensated by a 17% impairment rating for a loss of the lower extremity rather than needing to be converted to 7% of the whole person. The testimony of the claimant that he experienced pain in his right hip, as well as Dr. Hughes’s finding of post-traumatic arthritis in the hip, and the fact of measured range of motion in the hip constituted substantial evidence to support the finding of the ALJ.

The Industrial Claim Appeals Office (the Panel) affirmed the ALJ’s decision, stating that they could not interfere with the ALJ’s credibility determinations except in the extreme circumstances where the evidence credited was so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Halliburton Serv. v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Indus. Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997). The Panel perceived no extreme circumstances in this case and affirmed the ALJ’s decision.

Venagas v. Maldonados Serv. Inc., W.C. No. 5-067-002-001 (I.C.A.O. Jan. 22, 2021).

Want to know more? Contact Tara Starzec at tstarzec@pollartmiller.com or 877-259-5693.

March 2021 Newsletter

2021-04-21T07:31:19+00:00