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Rivera v. James Ranches Landscaping Co., W. C. No. 4-674-865 (2007).

Industrial Claim Appeals Office

On November 17, 2005, Manuel Rivera was a hardworking employee of the James Ranches Landscaping Company (respondent). On that day, Mr. Rivera worked with another employee (Gio) to lay erosion blankets on a steep hill that included a sudden drop-off at the bottom. Due to the drop-off, Gio and Mr. Rivera wore safety harnesses with ropes that were anchored at the top of the hill, where a spotter stood for added safety.
 
At some point, Gio became disoriented and removed his safety harness. As Mr. Rivera attempted to help Gio, the pair suddenly fell down the hill and over the edge, and stopped only when Mr. Rivera’s coat caught on his safety line. After untangling the lines, the pair jumped down to the roadway below the drop and Mr. Rivera caught a ride from a flagger on the road to the bathroom before returning to the top of the hill.
 
Despite Gio’s pleas for Mr. Rivera not to report the injury he sustained from the fall for fear Gio would lose his job, Mr. Rivera wrote a note for his supervisor and obtained Gio’s signature. Mr. Rivera then continued to work despite his injury until late January. On January 22, 2008, Mr. Rivera went to the emergency with a chief complaint of headaches from the injury. Then, on January 26, 2008, Mr. Rivera again went to the hospital where X-rays and an MRI of the cervical spine showed degenerative disc disease throughout the cervical spine, but no acute injury.
 
Though Mr. Rivera was clearly injured from the fall, conflicting testimonies caused him great difficulties in receiving the medical care he needed. So, Mr. Rivera hired Mr. Simon for representation in the workers’ compensation system. Mr. Simon was faced with the following conflicting testimonies from other employees at the respondent’s company:
 
The spotter at the top of the hill testified that he never left his post during the day and did not see Mr. Rivera fall. Further, he testified that, if any person had fallen, she was in a position that she would have seen the fall.   
 
The supervisor testified that he never received the note Mr. Rivera claimed he wrote about the incident. Further, on the space provided on the back of each employee’s timecard designated to report injuries, there was no report of an incident on the back of Mr. Rivera’s card for November 17. 
 
The flagger who reportedly took Mr. Rivera to the restroom and back to the top of the hill testified that he did not leave her pots the entire day, she did not see Mr. Rivera fall, and that if he would have fallen then she absolutely would have seen the fall. Further, she testified that she never took only one employee at a time to the restroom.
 
Also, a fellow employee who often talked to Mr. Rivera testified that Mr. Rivera did not mention anything about a fall or injury during their conversations.
 
Upon the facts, the administrative law judge (ALJ) dismissed and denied Mr. Rivera’s claim for compensation. The ALJ concluded that Mr. Rivera’s testimony was unreliable internally, unreliable against the testimonies of the other witnesses, and unreliable against the medical records.
 
Despite the mounting evidence against Mr. Rivera’s claim, Mr. Simon appealed the decision to the Industrial Claim Appeals Office. To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991). Second, due to this large discretion, the Industrial Claim Appeals Office (the Panel) will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
 
Though the decision of the ALJ was ultimately upheld, it was not for lack of effort on the part of Mr. Simon.