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.
