Bodensieck v. Industrial Claim App. Office

Citations: 183 P.3d 684; 2008 Colo. App. LEXIS 436; 2008 WL 732114Docket: 07CA1022

Court: Colorado Court of Appeals; March 20, 2008; Colorado; State Appellate Court

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Pamela Bodensieck appeals a final order from the Industrial Claim Appeals Office, which upheld the denial of her workers' compensation claims for injuries sustained while working as a housekeeper and groundskeeper for Terra Management Group, LLC. Bodensieck alleged a right hand injury in 2004 and a back injury in 2005. After two evidentiary hearings, a second administrative law judge (ALJ) concluded that she did not prove either injury was work-related, leading to the denial of both claims, which the Panel affirmed.

The court rejected Bodensieck's due process argument regarding the second ALJ's credibility assessment, as the ALJ had reviewed the hearing transcripts and digital recordings. The court cited precedents affirming that an administrative officer can rely on written records and recordings to make decisions. The second ALJ found Bodensieck's testimony incredible due to contradictions with medical records and inconsistencies in her accounts, particularly regarding her back pain. The court concluded that the reliance on the ALJ's credibility determinations did not violate due process and affirmed the decision that Bodensieck failed to meet her burden of proof for her claims.

Physical appearance may influence perceptions of a witness's credibility, but verbal communication and demeanor play a more significant role in assessing believability. A second Administrative Law Judge (ALJ) reviewing recorded testimony is comparable to a vision-impaired judge and is not denied due process in evidentiary proceedings. The record provides sufficient basis for credibility assessments, including the reasonableness and consistency of testimony, as well as corroboration by other evidence. The inconsistencies in the claimant's testimony and supporting documentation were evident from the written record, affirming that the second ALJ could similarly discern these issues from audio recordings. 

An appellate court typically defers to lower court credibility determinations based on the written record and has no advantage in evaluating audio material. Therefore, the reassignment of the case to a second ALJ, who assessed credibility after reviewing testimony recordings, did not violate the claimant's due process rights. 

The claimant's argument regarding undue delays in the issuance of orders and benefits is unfounded, as the relevant statute pertains solely to hearing timelines. Since benefits were denied, claims of undue delay are moot. Finally, the second ALJ's acceptance of the independent medical examination (IME) physician's opinion did not breach due process, as the physician was appropriately retained to assess work-related medical conditions and was not involved in disputes over maximum medical improvement or permanent impairment.

The physician's testimony was found free of bias, focusing solely on whether the claimant misrepresented symptoms or had exacerbated psychological disorders. The second Administrative Law Judge (ALJ) did not err in accepting the Independent Medical Examination (IME) physician's opinion. The claimant's argument that the second ALJ incorrectly allowed the employer to use her preexisting mental conditions as a defense was rejected, as the evidence presented did not constitute an affirmative defense, and the claimant did not object to the admission of her medical records. Any potential error in admitting this evidence was deemed harmless, as it did not affect her substantial rights. The court refrained from addressing the claimant's concerns about the employer's discovery requests and handling of her medical records, as these matters fell outside the Workers' Compensation Act's scope. The claimant's challenges to the second ALJ's factual determinations were also dismissed, as substantial evidence supported the findings, which the court must uphold despite conflicting evidence. Ultimately, the order of the second ALJ and the Panel was affirmed, with both Judge Casebolt and Judge Terry concurring.