Olivas v. Apt Service, Inc., W. C. No. 4-711-385 (2007)

Industrial Claim Appeals Court

Final Order
Robert Olivas was employed as a tow truck operator for Apt Service, Inc. on January 5, 2007. On that day, Mr. Olivas drove a tow truck with a manual transmission to the home of a woman to assist her in pulling her car out of a snow bank. After Mr. Olivas tilted the bed of the tow truck, he slipped and fell while pulling a cable to connect his truck to the woman’s car. Mr. Olivas stopped his fall and felt a sharp pain in his right shoulder. Despite the pain, Mr. Olivas continued to tow cars until the end of the day, until around 7:00 P.M. that evening. At that time, he signed his time card and picked his check up from the owner’s office at Apt Service.
Mr. Olivas did not mention the injury to his employer the night it occurred, but the next morning was unable to attend work because of severe pain in his shoulder. Around 9:00 A.M., Mr. Olivas’ wife called the employer to explain Mr. Olivas’ condition, and she was told to take Mr. Olivas to Concentra, which was open until noon. Due to pain and complications, Mr. Oliva was unable to get to Concentra before it closed, so he was seen at an emergency room. At the emergency room, the treating physician noted that Mr. Olivas could not lift his arm above his right shoulder and that Mr. Olivas was in acute pain from his fall on the ice.
After attempts to return to limited-duty work, Mr. Olivas again had to visit the emergency room on February 2, 2007, due to increased pain in his shoulder and pain and tingling in his hands.
Mr. Olivas then hired Mr. Simon to pursue proper treatment from his workers’ compensation benefits. Unfortunately for Mr. Olivas, other witnesses testified against his story. First, the woman that Mr. Olivas helped testified that Mr. Olivas did not appear to be hurt and did not see him fall while he helped her. Further, she testified that she did not believe Mr. Olivas could have injured himself between when she called the tow company and when she first saw Mr. Olivas. Second, the company’s owner testified that Mr. Olivas would not have been able to operate his truck without the use of right hand and arm.  
Regardless, Mr. Simon understood and believed Mr. Olivas when he told him that he was injured on the job and that he needed Mr. Simon’s help to receive workers’ compensation benefits. Upon review of the claim, the administrative law judge (ALJ) was not persuaded that Mr. Olivas could have performed his duties after the injury Mr. Olivas claimed, and determined that Mr. Olivas failed to establish that he sustained a work-related injury.
Upon Mr. Simon’s belief in Mr. Olivas’ account of the story and reported injury, Mr. Simon appealed the decision of the ALJ to the Industrial Claim Appeals Court (the Panel). Mr. Simon disputed several of the ALJ’s findings and argued that the dismissal of Mr. Olivas’ claim was not supported by substantial evidence.
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 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).
First, Mr. Simon argued that the customer that Mr. Olivas helped, whose testimony about a lack of time for Mr. Olivas to sustain an injury and was given deference by the ALJ, was not in a position to witness the accident. In response, the Panel stated that although it was conceivable that Mr. Olivas’ injury could have happened as he described, the ALJ made a reasonable inference that Mr. Olivas did not sustain an injury as he described. Since the standard of review for the Panel does not allow it to overturn the ALJ’s decision when the record supports a reasonable conclusion by an ALJ, the Panel upheld the findings of the ALJ.  
Second, Mr. Simon argued that the ALJ erred in finding that Mr. Olivas would not have been able to continue working after sustaining the injury he described. Mr. Simon pointed to Mr. Olivas’ testimony that he was not a weak person and simply wanted to complete his job to the best of his abilities. However, the ALJ credited testimony that the truck Mr. Olivas was driving was a manual transmission that required the use of the right arm and hand, and the completion of other duties, as reasons to support the conclusion that Mr. Olivas did not sustain the injury he described. The Panel stated that the ALJ is free to credit portions of Mr. Olivas’ testimony while discrediting the others, and found that the ALJ’s determination that Mr. Olivas would not have been able to work was supported by the record.
Third, Mr. Simon argued that the ALJ erroneously allowed lay witnesses to testify as experts, particularly the authority given to the owner’s testimony that Mr. Olivas did not act “out of the ordinary” when he picked his check up. Mr. Simon asserted that the ALJ’s finding that Mr. Olivas had pain and inability to use his right arm were contrary to the owner’s testimony was an improper inference made from the testimony of a layperson.
The Panel, however, found that the ALJ only concluded that the findings were inconsistent with pain and inability to use his right arm, which was a permissible inference from the testimony of a layperson. Combined with other testimony, the Panel found that the ALJ did not err in the deference she gave to the testimony of the owner.
Ultimately, the Panel upheld the denial of benefits to Mr. Olivas. However, this case is a perfect illustration of Mr. Simon’s commitment to belief in the stories his clients present. Three different witnesses testified against Mr. Olivas’ injury, but Mr. Simon still pursued the case for Mr. Olivas because he was his client. Against the odds of the outcome, Mr. Simon went to-bat for Mr. Olivas, and offered every bit of legal expertise he could to help Mr. Olivas prove that his injury occurred.
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