Santiagos v. ICAO

24CA0118 Santiagos v ICAO 07-18-24

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0118

Industrial Claim Appeals Office of the State of Colorado

WC No. 5-148-399

Santiagos Chambers, LLC, and Fire Insurance Exchange,

Petitioners,

v.

Industrial Claim Appeals Office of the State of Colorado and Roman Calderon

Araiza,

Respondents.

ORDER AFFIRMED

Division II

Opinion by JUDGE SULLIVAN

Fox and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Law Offices of Collin T. Welch, Joe M. Espinosa, Oklahoma City, Oklahoma, for

Petitioners

No Appearance for Respondent Industrial Claim Appeals Office

Law Office of Miguel Martinez, PC, Joel Gonzalez-Bolivar, Denver, Colorado, for

Respondent Roman Calderon Araiza

1

¶ 1 In this workers’ compensation proceeding, Santiagos

Chambers LLC (Santiagos) and its insurer, Fire Insurance Exchange

(collectively, Respondents), seek review of the final order issued by

the Industrial Claim Appeals Office (the Panel) awarding benefits to

Roman Calderon Araiza (Calderon). We affirm.

I. Background

¶ 2 Santiagos employed Calderon as a dishwasher beginning in

June 2020. At that time he was seventy-one years old and worked

one day per week. Calderon testified that on August 27, 2020, he

was lifting a pot partially full of water and food debris from the floor

to the sink and hurt his back in the process. He estimated that the

weight of the filled pot was approximately fifty pounds. He

continued working to the end of his shift, and notified the shift

manager of the injury.

¶ 3 A few days later, Calderon went to his primary care provider at

Clinica Family Health to seek treatment, but was told that they

were too busy to treat him due to the COVID-19 pandemic. In

September, he was treated at Clinica with pain relievers and

injections. He filed a Workers’ Claim for Compensation on

September 10, 2020. Respondents filed a notice of contest, and

2

Calderon requested a hearing before an administrative law judge

(ALJ).

¶ 4 After the hearing, the ALJ issued findings of fact and

conclusions of law determining that Calderon had suffered a work-

related injury in the course and scope of his employment. The ALJ

ordered Respondents to pay all authorized, reasonably necessary,

and related medical benefits, and temporary total disability benefits

until terminated by law. The ALJ issued supplemental findings

after Respondents petitioned for review under section 8-43-301(5),

C.R.S. 2023. The supplemental findings expanded on certain areas

of discussion but didn’t change the result. Respondents then

appealed to the Panel, which rejected their arguments and affirmed

the ALJ’s order. Respondents now appeal the Panel’s order.

II. Standard of Review and Legal Principles

¶ 5 Our review of the Panel’s order is narrow. See Metro Moving &

Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995). We

may set aside an order only upon the following grounds:

That the findings of fact are not sufficient to

permit appellate review; that conflicts in the

evidence are not resolved in the record; that

the findings of fact are not supported by the

evidence; that the findings of fact do not

3

support the order; or that the award or denial

of benefits is not supported by applicable law.

§ 8-43-308, C.R.S. 2023.

¶ 6 We must accept the ALJ’s findings of fact if they are supported

by substantial evidence. Id. Substantial evidence is “that quantum

of probative evidence which a rational fact-finder would accept as

adequate to support a conclusion, without regard to the existence of

conflicting evidence.” Metro Moving & Storage, 914 P.2d at 414. In

applying this test, “we must view the evidence as a whole and in the

light most favorable to the prevailing party.” Id. We defer to the

ALJ’s credibility determinations and resolution of conflicts in the

evidence, including conflicts in the medical evidence. Id. Causation

is generally a question of fact for the ALJ. Faulkner v. Indus. Claim

Appeals Off., 12 P.3d 844, 846 (Colo. App. 2000).

¶ 7 Under the Workers’ Compensation Act of Colorado, an

employee is entitled to compensation for an “injury or death . . .

proximately caused by an injury or occupational disease arising out

of and in the course of the employee’s employment.” § 8-41-

301(1)(c), C.R.S. 2023. The “in the course of” requirement refers to

the time, place, and circumstances under which a work-related

4

injury occurs. Town of Kiowa v. Indus. Claim Appeals Off., 2024

COA 36, ¶ 13. Thus, an injury occurs in the course of employment

when it takes place within the time and place limits of the

employment relationship and during an activity connected with the

employee’s job-related functions. Id. The term “arising out of”

refers to the origin or cause of an injury. Id. A causal connection

between the injury and the work conditions is required for the

injury to arise out of employment. Id. An injury “arises out of”

employment when it has its origin in an employee’s work-related

functions and is sufficiently related to those functions to be

considered part of the employee’s employment contract. Id.

III. Analysis

¶ 8 On appeal, Respondents contend that:

• this was an unwitnessed event and Calderon did not seek

medical treatment until three weeks after the injury;

• Calderon gave multiple versions of the mechanism of injury

to his providers;

• the ALJ abused her discretion in excusing Calderon’s

inconsistent theories, basing it on poor translation; and

5

• the ALJ abused her discretion in finding the opinions of

other doctors more credible than that of the Independent

Medical Examiner, Dr. Lloyd Thurston.

A. Proceedings Below

¶ 9 The ALJ heard testimony from Calderon, two Santiagos

employees, and Dr. Thurston. Calderon, assisted by an interpreter,

testified that he hurt his back “from lifting a ten-pound pot from the

floor up to the sink that was three-quarters full of water and a meal

that had been leftover, and meat that was to be thrown out.” When

asked how much the pot with the contents weighed, Calderon

responded that the total weight was approximately fifty pounds. He

also testified that in addition to the pots, he often washed pans of

various sizes. He further testified that he told his shift manager

about the injury at the end of his shift on August 27, 2020, and

sought medical treatment at Clinica, but was unable to immediately

receive care due to the COVID-19 pandemic. Calderon testified that

he was paid twelve dollars per hour, occasionally received tips, and

worked between seven and eight hours per week.

¶ 10 Fabiola Morales, a Santiagos manager and owner, also

testified with assistance from the interpreter. She was asked to

6

describe two photos: a photo of two pots used for chili and beans,

and a photo of pans that sat on serving steamers and contained

food. While she testified that the pans “had nothing to do with the

dishwasher,” she also testified that the waiters would bring the

pans to Calderon for washing.

¶ 11 Tobias Morales, also a Santiagos manager and owner, testified

that the pots and pans would have been mostly empty when given

to Calderon for washing. He did admit, however, that Calderon may

have had a big pan to wash “if we’re super busy and they needed to

make an extra batch of chili, he may have ended up with one of

those.” He testified that twelve pans were on the steam table at one

time and that “maybe thirty pans” would need to be cleaned. When

shown Calderon’s timecards, he testified that dishwashers normally

have everything done by 9:00 p.m., but sometimes Calderon

wouldn’t finish until 10:00 or 10:30 p.m. Finally, he testified that

tips during the COVID-19 period were “very minimal” and that at

most Calderon would have received ten or twelve dollars in tips per

day.

¶ 12 Dr. Thurston testified that, at Respondents’ request, he

performed an Independent Medical Examination (IME) of Calderon

7

in August 2022. When asked by Respondents’ counsel why he

stated in the IME that the “mechanism of injury” was not a “focus

point of the report,” Dr. Thurston responded, “well, so I’ve seen

people that have herniated a disk or injured their back sneezing.

So to me, it’s not particularly important whether he’s lifting one

pound or fifty pounds.” Dr. Thurston testified that he reviewed

Calderon’s MRI, completed two years after the August 2020 injury,

which showed no disc herniations. Dr. Thurston opined that

Calderon’s account of how hard he worked wasn’t accurate because

he didn’t work many days. Thurston opined that Calderon’s most

probable injury from lifting the pot was a myofascial strain that

would have resolved within four to six weeks.

¶ 13 When asked on cross-examination whether, due to his age,

Calderon could have been injured even if he lifted an empty pot,

Thurston responded, “oh, yes.” But when asked if there was a

“difference in recovery between an older person and a younger

person, Dr. Thurston responded, “Older people tend to recover more

slowly, but they are usually more experienced with their bodies.

They’re a little smarter about how they recover. So I think it is

8

about a wash.” Due to time constraints, the rest of Dr. Thurston’s

testimony was concluded by deposition.

¶ 14 Evidence in the record before the ALJ included many pages of

medical records from Calderon’s treating providers at Clinica.

Calderon was first seen in person by a nurse practitioner, Jennifer

Manchester, on September 18, 2020. At that visit, he complained

of back pain radiating to both legs, and numbness affecting both of

his lower extremities. His physical exam showed tenderness to

palpation to the lumbar spine. Manchester diagnosed Calderon

with lumbar pain and radiculopathy affecting lower extremities, and

referred him for an orthopedic consultation. She restricted

Calderon from work from August 27, 2020, until October 2, 2020.

¶ 15 Calderon continued medical treatment for his injury at

Clinica, and his off-work status continued. On October 7, 2020,

Calderon returned to Clinica for a follow-up visit with Dr. Upasana

Mohapatra, who reviewed thoracic X-rays and noted no fractures,

but expressed concern for decreased sensation in dermatomes from

L4-S1. She diagnosed Calderon with acute midline thoracic back

pain and leg numbness; she ordered a lumbar and thoracic MRI.

9

¶ 16 Calderon continued to receive pain-management care at

Clinica, including injections and medication. He also saw a Clinica

Behavioral Health Specialist who diagnosed him with depression.

In April 2021, at the request of Calderon’s counsel, Dr. Gregory

Reichardt performed an IME. Dr. Reichhardt noted tenderness to

palpation that was most pronounced at the L1 to L3 level. He also

reported that Calderon had moderate lumbar paraspinal muscle

spasms from L1 to L5, and straight leg raising was positive for back

and leg pain. Dr. Reichhardt opined that based on the exam, the

history provided by Calderon, and his medical records, Calderon’s

thoracolumbar pain and lower extremity symptoms were related to

his August 27, 2020, work-related injury.

¶ 17 After hearing all the testimony and reviewing the evidence in

the record, the ALJ found that Calderon had proven that he was

injured in the course and scope of his employment with Santiagos

on August 27, 2020, when he lifted a pot with water and food debris

off the floor and strained his thoracolumbar spine. The ALJ further

found that Calderon subsequently developed lower extremity

radicular symptoms and depression related to his chronic low back

and radicular pain and numbness, and that those injuries were

10

compensable. On appeal to the Panel, Respondents made many of

the same arguments they now make to this Court. The Panel

rejected those contentions and affirmed the ALJ’s order.

B. Discussion

¶ 18 After thoroughly reviewing the record, we agree with the Panel

that substantial evidence supports the ALJ’s determination.

Respondents argue that “this was an unwitnessed event and

Calderon did not seek medical treatment until three weeks after the

injury.” But our review of the record supports the ALJ’s finding

that Calderon sought treatment within a few days of his injury, not

three weeks later. The delay in his treatment was attributed to the

COVID-19 pandemic, and we find substantial evidence supports

that conclusion. While Respondents are correct that the injury was

apparently “unwitnessed,” that fact does not, in itself, render the

injury not compensable. See Town of Kiowa, ¶ 18 (holding that a

claimant’s testimony as to an unwitnessed accident, combined with

medical evidence, can constitute credible evidence of the time, place

and date of the injury).

¶ 19 We also reject Respondents’ arguments that Calderon gave

multiple versions of the mechanism of injury to his providers and

11

that the ALJ abused her discretion in excusing the inconsistent

theories, basing it on poor translation. The ALJ recognized and

addressed the inconsistences in the evidence and in Calderon’s

account of the events leading to the work accident:

Respondents argue that [Calderon’s] version of

events was illogical and there was no reason

for anyone to take the empty pot, fill it with

water and then place it on the ground to be

cleaned as it did not make sense. However,

this ALJ concludes that it makes a lot of sense.

It is clear that dirty pans do get placed on the

floor waiting to be washed as seen in the

photos taken by Respondents. It is evident

from the photos that there is a limited area to

place dirty items as the space was needed to

take items from the sink onto the small

counter in order to wash them. [Calderon’s]

testimony that the pot he lifted was full of

water and food debris was credible. A pot that

has been used to cook may have food stuck

and water was placed in the pot in order to

assist with cleaning the pot later. And while

[Calderon’s] assessment of weight may be

imperfect, it does not change the fact that [he]

lifted items that he considered heavy, and at

one of those events, injured his thoracolumbar

spine. This is supported by the records from

Clinica Family Health and Dr. Reichhardt as

well as [by Calderon’s] testimony, which are

found credible.

¶ 20 Despite the ALJ’s resolution of the conflicting evidence, the

Respondents ask us to reweigh the evidence and make contrary

12

findings to those made by the ALJ. However, like the Panel, we

have no authority to do so unless the testimony believed by the ALJ

was rebutted by such hard, certain evidence that it would be error

as a matter of law to credit it. See Halliburton Servs. v. Miller, 720

P.2d 571, 578 (Colo. 1986). That is not the case here. While

Respondents contend the ALJ should have given more weight to Dr.

Thurston’s testimony, we note, as did the ALJ, that Dr. Thurston

testified that Calderon could have been injured even if the pot was

empty. Thus, Respondents’ arguments about the weight of the pot

don’t persuade us that the ALJ committed reversible error.

¶ 21 Next, the Respondents argue that the ALJ erred in crediting

Dr. Reichhardt’s IME and opinions since they were based on an

incorrect mechanism of injury that Calderon reported. But in Dr.

Reichhardt’s IME, he states that the mechanism of injury reported

was “lifting a pot at work on August 27, 2020, while working as a

dishwasher.” While Respondents argue about whether Calderon

washed both pots and pans, how many pans he washed, and

whether they were empty or full, those factors don’t appear to have

influenced Dr. Reichhardt’s assessment of the mechanism of injury.

13

¶ 22 To the extent that Dr. Reichhart may have considered

Calderon’s statements that he worked hard and washed many pots

and pans, we don’t view such statements as “misconceived

information” as Respondents argue. The transcript of the hearing

indicates that, on cross-examination, Calderon was asked about Dr.

Reichhardt’s notes concerning the injury, which stated, “[Calderon]

notes that his job involves lifting pans, washing them, and putting

them in overhead cabinets. He notes that the pans weigh up to

fifteen pounds and he typically washes 100 pans per eight-hour

shift.” When asked if that was accurate, Calderon testified, “we

have, for the public, there are some eight to ten large dishes that we

also have to wash at the end of the shift. And that’s why I had said

that there was around 100. Even the disposable containers, there

was about ten to fifteen to twenty that they would have me wash

those again.”

¶ 23 Respondents argue that the ALJ erred in excusing Calderon’s

allegedly inconsistent theories of injury, “basing it on poor

translation.” We reject this argument. In her order, the ALJ stated,

“This ALJ does not consider [Calderon’s] being a poor historian,

which was documented in various records, as being untruthful, but

14

a result of multiple factors, including use of interpreters instead of

direct communication with medical providers, his clear lack of

education demonstrated by [his] word usage and patterns of speech

at the hearing, his demeanor and difficulty understanding simple

questions, in addition to his age, memory, and documented

depression.”

¶ 24 The ALJ is the sole finder of fact, and the sole determiner of

the credibility of witnesses. Life Care Ctrs. of Am. v. Indus. Claim

Appeals Off., 2024 COA 47, ¶ 36. The weight and sufficiency of the

evidence and the probative effect of evidence are matters solely

within the ALJ’s province. Id. Like the Panel, we won’t disturb the

ALJ’s credibility determinations or the weight she gave to the

testimony.

¶ 25 Finally, Respondents argue that Calderon misrepresented the

number of days and hours he worked. But as the ALJ noted, while

the clocked-in time shows seven or fewer hours worked per day,

this doesn’t count the time that Calderon was at the job site,

including his breaks, which was consistent with his testimony that

he was at work for seven to eight hours per day. Further, the

parties stipulated during the hearing that Calderon’s Average

15

Weekly Wage was $103.85. The transcript reflects that

Respondents’ counsel stated:

I guess what I came up with, Your Honor, just

as far as straight hours, was $88.55, just

based off the time that he worked until his last

day, which was about 75 days, and divided

that into weeks by the -- a gross total. But

that did not include tips. As Mr. Morales just

testified to, it was about $10 to $15.

[Calderon’s counsel] I believe, at the beginning

of the hearing, suggested $103. I guess 88

plus 15 is 103.· So if . . . the number’s 103, we

can agree to that.”

¶ 26 This calculation appears consistent with working a seven- or

eight-hour day, one day per week, at twelve dollars per hour, plus a

minimal amount of tips. Accordingly, we reject Respondents’

argument regarding Calderon’s alleged misrepresentations about

the amount of time he worked.

IV. Disposition

¶ 27 We affirm the Panel’s order.

JUDGE FOX and JUDGE GROVE concur.