24CA1770 Gallegos v ICAO 05-15-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1770 Industrial Claim Appeals Office of the State of Colorado WC No. 5-118-378
Albert Gallegos,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Ammex Masonry, and Pinnacol Assurance,
Respondents.
ORDER AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Pawar and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025
Albert Gallegos, Pro Se
No Appearance for Respondent Industrial Claim Appeals Office
Alenka J. Han, Denver, Colorado, for Respondents Ammex Masonry and Pinnacol Assurance ¶1 Claimant, Albert Gallegos, appeals a final order of the
Industrial Claim Appeals Office (the Panel) affirming an
administrative law judge’s (ALJ) determination that Gallegos must
repay benefits and mileage reimbursement due to fraud. We affirm.
I. Background
A. Medical History
¶2 Gallegos began working for Ammex Masonry as a forklift
operator in January 2019. He sustained an admitted work-related
injury to his neck on September 5, 2019. Gallegos was diagnosed
with cervical (neck) and thoracic (back) strain at Midtown
Occupational Health Services (Midtown). During an examination at
Midtown, a physician assistant-certified (the PA-C) found that
Gallegos had full range of motion of his shoulders, cervical spine,
and thoracic spine. Gallegos reported having low back surgery in
2012 but no other relevant medical history. The PA-C prescribed
Naproxen, advised Gallegos to apply ice and heat three times daily,
and released him to full work duty. Gallegos did not complete his
shift the next day, however, reporting that he could not tolerate the
vibration from his forklift.
1 ¶3 Gallegos then began treatment with Dr. Lloyd Thurston, an
Authorized Treating Physician (ATP) at Midtown. Gallegos told Dr.
Thurston that he also injured his left shoulder on the date of the
accident. Dr. Thurston prescribed additional medications, physical
therapy, and massage, and restricted Gallegos from working until a
follow-up appointment. Subsequent magnetic resonance imaging
(MRI) showed no fractures or ligament injury, but some
degenerative changes. After several weeks of care, Dr. Thurston
released Gallegos to restricted work duty in late October 2019.
After working for two days, Gallegos asserted he could no longer
work due to pain, and he never returned to work.
¶4 In November, Dr. Thurston referred Gallegos to an orthopedist,
who ordered steroid injections. A month later, Ammex and its
insurer, Pinnacol Assurance (jointly, the employer), filed a General
Admission of Liability and provided medical benefits, Temporary
Total Disability (TTD) benefits, and reimbursement for Gallegos’s
mileage to attend appointments and pick up prescriptions. The
employer provided these benefits to Gallegos over the next three
years.
2 ¶5 In early 2020, Dr. Thurston retired, and Dr. Lon Noel at
Midtown became Gallegos’s ATP. Gallegos told Dr. Noel that his
neck pain was worsening, and Dr. Noel eventually diagnosed
Gallegos with cervical radiculopathy. Dr. Noel referred Gallegos to a
surgeon, who performed a cervical discectomy and fusion in
October 2020.
¶6 Two months after the surgery, Gallegos reported to Dr. Noel
that his left shoulder pain and mid-back conditions had rendered
him unable to get out of bed without help. Dr. Noel referred him to
Dr. Yusuke Wakeshima. Dr. Wakeshima diagnosed Gallegos with
degenerative cervical disc disease and noted that Gallegos
complained of pain in his neck, mid-back, and shoulder. He treated
Gallegos over the next two years with medication and physical
therapy.
¶7 Meanwhile, Gallegos had an MRI on his left shoulder and
thoracic region. The thoracic MRI showed some mild degenerative
disease but no evidence of acute abnormality. The shoulder MRI
showed several tears in the tendon, and Gallegos was referred to
another surgeon who performed a left shoulder arthroscopy in
November 2021.
3 ¶8 By March 2022, Dr. Noel’s progress notes indicated that
Gallegos reported he “is doing better overall.” Dr. Noel noted that
Gallegos’s “neck range of motion ha[d] basically plateaued,” but that
he was having very little neck pain and no arm pain. Dr. Noel
referred him for a functional capacity evaluation. During the
evaluation, however, Gallegos complained that his pain levels
rendered him unable to complete it. On April 28, 2022, Dr. Noel
placed Gallegos at Maximum Medical Improvement (MMI). (MMI is
defined as “a point in time when any medically determinable
physical or mental impairment as a result of injury has become
stable and when no further treatment is reasonably expected to
improve the condition.” § 8-40-201(11.5), C.R.S. 2024.) Dr. Noel
also assigned permanent impairment ratings (IR) for Gallegos’s
neck, thoracic spine, and left shoulder, with his thoracic and
cervical spine IRs combining for a 30 percent whole person IR.
¶9 The employer scheduled an independent medical exam with
Dr. Scott Primack, who examined Gallegos and reviewed his
medical records. Dr. Primack agreed that Gallegos had reached
MMI but disagreed with the IR.
4 ¶ 10 The employer then requested a division-sponsored
independent medical exam (DIME). The DIME physician, Dr.
Stanley Ginsburg, reviewed Gallegos’s medical history beginning on
the date of the injury. During the DIME, Gallegos reported his
2012 back surgery and the surgeries in 2020 and 2021, but “denied
any other medical history.” Dr. Ginsburg agreed with Dr. Noel that
Gallegos had reached MMI on April 28, 2022, and assigned a
combined 39 percent whole person IR.
B. Procedural History
¶ 11 The employer applied for a hearing to overcome the DIME
physician’s MMI findings and IR. In his response, Gallegos
requested that the hearing include consideration of permanent
partial and total disability benefits, medical benefits, and
disfigurement benefits.
¶ 12 After an investigation, the employer filed another application
for a hearing that added the issues of overpayment and repayment
of benefits based on fraud. The employer’s investigation showed
that Gallegos had asserted prior workers’ compensation claims and
applied for Social Security Disability Insurance (SSDI) benefits on
multiple occasions based on alleged neck, back, and shoulder
5 injuries. The investigation also involved surveillance videos of
Gallegos walking, standing, and carrying objects without difficulty.
One video, taken on the date of the DIME, showed Gallegos
dancing.
¶ 13 The ALJ issued a thirty-page order (the ALJ order) following a
two-day hearing. In the ALJ order, the ALJ found that Gallegos’s
“level of function was, more likely than not, much greater than he
represented to his health care providers.” The ALJ also found that
Dr. Ginsburg’s DIME report “was highly probably incorrect.” The
ALJ credited Dr. Primack’s opinions over those of Dr. Ginsburg. Dr.
Primack opined that a cervical MRI taken in connection with a 2018
SSDI examination — before the 2019 work accident — was the
same as the cervical MRI taken after the accident.
¶ 14 The ALJ concluded that the work accident may have
temporarily aggravated Gallegos’s pre-existing conditions, and that
Gallegos had a “significant history of cervical spine injuries dating
to at least 2009.” The ALJ determined that, by February 2020,
however, Gallegos had undergone sufficient treatment and reached
MMI for the work-related temporary exacerbation of pre-existing
symptoms. The ALJ also found that, because Gallegos failed to
6 disclose his medical history, Dr. Ginsburg was deprived of
necessary information to assess an IR. After reviewing the
evidence, the ALJ determined that Gallegos had a zero percent IR
for his shoulder, cervical spine, and thoracic spine as a result of the
September 2019 accident.
¶ 15 The ALJ found that Gallegos received an overpayment of TTD
benefits in the amount of $76,112.36. The ALJ based those
findings, in part, on the video surveillance of Gallegos walking,
standing, and dancing between September 2021 and April 2022,
when Gallegos was still representing to his providers that he was
unable to work. The ALJ found that Gallegos fraudulently obtained
TTD benefits due to his misrepresentations regarding the extent of
his injury and ability to work.
¶ 16 The ALJ also found that Gallegos submitted over one hundred
mileage reimbursement requests, in which he misrepresented his
actual mileage. He had requested mileage reimbursements for
medical visits that did not occur, trips to pharmacies on dates when
no prescriptions were disbursed, and trips from Fairplay to Denver
when, in fact, Gallegos stayed in Denver. The ALJ found that
Gallegos knowingly submitted false mileage reimbursement
7 requests and ordered him to repay $8,985.60 in mileage
reimbursements.
¶ 17 However, the ALJ rejected the employer’s argument that
Gallegos should also repay medical benefits. The ALJ found that,
while Gallegos’s “concealment of his prior conditions likely
influenced his providers’ treatment decisions,” the evidence did not
establish that “all treatment after [the date of injury] was induced
by fraud.”
¶ 18 Gallegos appealed the ALJ order to the Panel, which entered a
final order (the Panel order) affirming the ALJ order as supported by
substantial evidence in the record. Gallegos now appeals the Panel
order.
II. Issues on Appeal
¶ 19 Gallegos, representing himself on appeal, contends that
• the ALJ improperly found that he reached MMI in
February 2020;
• he did not misrepresent his condition to providers;
• the testimony concerning mileage fraud was conflicting;
• the ALJ prevented him from questioning several
witnesses; and
8 • the matter was improperly assigned to a new ALJ after
the first ALJ became unavailable.
¶ 20 In its answer brief, the employer characterized the issues as
whether substantial evidence in the record supported the ALJ’s
findings that (1) the employer overcame, by clear and convincing
evidence, the DIME physician’s MMI date and IR; (2) the employer
proved that Gallegos fraudulently received $76,112.36 in TTD
benefits; and (3) the employer proved that Gallegos fraudulently
obtained reimbursement for $8,985.60 in claimed medical mileage
expenses. The employer also asserts that Gallegos did not
articulate any basis for setting aside the ALJ’s decision based on
evidentiary rulings concerning the examination of witnesses or the
reassignment of the case to a different ALJ to prepare the ALJ
III. Standard of Review
¶ 21 As relevant here, we may only set aside the Panel order if “the
findings of fact are not supported by the evidence; that the findings
of fact do not support the order” or the “denial of benefits is not
supported by applicable law.” § 8-43-308, C.R.S. 2024. “If the
findings of fact entered by the [ALJ] are supported by substantial
9 evidence, they shall not be altered by the court of appeals.” Id.
“Substantial evidence” is “that quantum of probative evidence that a
rational fact finder would accept as adequate to support a
conclusion, without regard to the existence of conflicting evidence.”
Life Care Ctrs. of Am. v. Indus. Claim Appeals Off., 2024 COA 47, ¶
14, 553 P.3d 905, 908.
IV. Analysis
A. ALJ’s Findings as to IR and MMI
¶ 22 A DIME physician’s opinions concerning MMI and permanent
medical impairment may only be overcome by clear and convincing
evidence. § 8-42-107(8)(b)(III), C.R.S. 2024. Clear and convincing
evidence means evidence that is “highly probable and free from
serious or substantial doubt.” Metro Moving & Storage Co. v.
Gussert, 914 P.2d 411, 414 (Colo. App. 1995). It is solely for the
trier of fact to determine the persuasive effect of the evidence and
whether the challenging party has satisfied the party’s burden of
proof. Id.
¶ 23 To overcome a DIME physician’s IR, a party must present
evidence demonstrating it is “highly probable” that the rating is
incorrect. Leming v. Indus. Claim Appeals Off., 62 P.3d 1015, 1019
10 (Colo. App. 2002). The weight and credibility to give to expert
witnesses’ testimony is within the ALJ’s discretion and may not be
disturbed absent a showing that the ALJ’s credibility determination
is “overwhelmingly rebutted by hard, certain evidence to the
contrary.” Loofbourrow v. Indus. Claims Appeals Off., 321 P.3d 548,
552-53 (Colo. App. 2011), aff’d sub nom. Harman-Bergstedt, Inc. v.
Loofbourrow, 2014 CO 5, 320 P.3d 327.
¶ 24 After a thorough review of the record, we agree with the Panel
that the ALJ did not err by finding that the employer overcame the
DIME physician’s conclusions as to the IR and date of MMI. The
ALJ credited Gallegos’s medical records showing he was originally
diagnosed with a thoracic strain on the date of the injury and
reported thoracic pain until December 2019, but that he did not
report such pain again until substantially later. The ALJ observed
that “no provider ha[d] offered a cogent, credible opinion as to how
[the] thoracic spine symptoms after December 2019 were causally
related to” the work injury. In addition, the ALJ found that, while
Gallegos initially reported shoulder pain to Dr. Thurston about a
week after the work accident, his shoulder showed good function
and strength by November 2019, and Gallegos did not complain of
11 shoulder pain again until December 2020. Further, the ALJ found
that, because Gallegos “affirmatively misrepresented his cervical
spine history” to the DIME physician, that physician’s IR was
“highly probably incorrect.” The ALJ reasoned that Gallegos’s
functioning in the cervical spine was “already limited” before the
work accident. The ALJ ultimately relied on Dr. Primack’s opinion,
based on the MRI evidence, that the work accident did not cause
permanent impairment to the cervical spine.
¶ 25 The ALJ noted that, while the employer urged an MMI date of
September 19, 2019, that date was solely based on the date of the
cervical MRI. Instead, the ALJ found that Gallegos reached MMI on
February 2, 2020, the date of Dr. Noel’s first visit examination. The
ALJ also found that, by that time, Gallegos “had undergone
significant conservative treatment” and reached MMI for “work-
related temporary exacerbation of his pre-existing cervical spine
condition.”
¶ 26 Gallegos points to several medical records to support his
argument that he did not reach MMI in February 2020. We note
that many of those records predate February 2020; for example,
Gallegos extensively refers to records from November 2019 and
12 January 2020. Those records do not controvert the ALJ’s
conclusion that Gallegos reached MMI after those dates. The
medical records that Gallegos cites predating the MMI consistently
reflect degenerative changes. The ALJ evaluated the medical
records in their entirety and found that, by February 2, 2020, after
“significant conservative treatment,” including physical therapy,
massage, and injections, Gallegos had reached a point of MMI for
his “work-related temporary exacerbation of his pre-existing cervical
spine condition.” Gallegos points to his surgeries after the MMI
date, but the ALJ found that those surgeries were not causally
related to the work injury.
¶ 27 Under our narrow standard of review, even if Gallegos
presented some evidence which, if credited, would support results
contrary to those the ALJ reached, that evidence would provide no
basis for relief on appeal. See Cordova v. Indus. Claim Appeals Off.,
55 P.3d 186, 191 (Colo. App. 2002). We may not interfere with an
ALJ’s resolution of conflicts in the evidence. Id. Gallegos is
essentially asking us to reweigh the evidence and to substitute our
judgment for the ALJ, which we have no authority to do. See City of
Durango v. Dunagan, 939 P.2d 496, 498 (Colo. App. 1997).
13 Therefore, like the Panel, we must affirm the ALJ’s findings as to
MMI and IR.
B. TTD Fraud
¶ 28 The ALJ found that the employer had proved that Gallegos
“obtained TTD benefits through fraud by misrepresenting to and
concealing from his health providers his levels of function and
ability to perform work.”
¶ 29 Section 8-43-303(1), C.R.S. 2024, provides that an ALJ may
review any award on the ground of fraud, and section
8-42-101(6)(a), C.R.S. 2024, allows recovery of the cost of care from
a claimant in the case of fraud. In this case, the ALJ did not grant
the employer’s request to repay the cost of care, which was at least
$121,884.61, because the ALJ determined that the employer did
not establish that all treatment after the date of injury was induced
by fraud. But the ALJ concluded that Gallegos fraudulently
induced the employer to pay TTD and mileage reimbursement
benefits.
¶ 30 To prove that a claimant received benefits fraudulently, an
employer must establish the elements of fraud: (1) a false
representation of a material existing fact; (2) knowledge on the part
14 of the one making the representation that it was false; (3) ignorance
on the part of the one to whom the representation was made of its
falsity; (4) the representation was made with an intention that it be
acted on; and (5) the representation resulted in damage. Se. Colo.
Water Conservancy Dist. v. Cache Creek Mining Tr., 854 P.2d 167,
172 (Colo. 1993); see also Vargo v. Colorado Industrial Commission,
626 P.2d 1164, 1166 (Colo. App. 1981) (upholding a finding of fraud
where the claimant had misrepresented the extent of his injury and
prior medical history).
¶ 31 The medical treatment records from Dr. Thurston and Dr. Noel
reveal that Gallegos did not tell them about the previous work
injuries to his neck and back. It was only through the employer’s
investigation that Gallegos’s true medical history was discovered.
The investigation revealed:
• Gallegos sustained a work-related injury to his lumbar
and cervical spine in March 2009 while working for
another masonry company. He received significant
treatment and was assigned an IR of 23 percent after
reaching MMI. That claim was settled in 2011.
15 • Gallegos applied for and received SSDI benefits in late
2011. At the time, he represented to the Social Security
Administration that he could not work due to disability.
• In 2015, he claimed neck and back injuries while
working for another masonry company. That claim was
settled in 2016.
• In several subsequent SSDI benefit hearings, he asserted
that he was unable to work due to back, neck, and arm
pain.
• On April 10, 2019, while working for the employer, he
submitted a verification of disability to the Jefferson
County Housing Authority, in which he represented that
his physical disability rendered him unable to engage in
any substantial gainful activity.
¶ 32 These incidents, combined with the surveillance videos, led the
ALJ to conclude that Gallegos had intentionally concealed his
significant prior medical conditions to obtain workers’
compensation benefits, including TTD benefits, from the employer.
Specifically, the ALJ found that, except for the periods of time when
Gallegos was recovering from surgery, he intentionally
16 misrepresented and concealed his functional ability to work.
Gallegos also knew that his misrepresentations were false because
he was aware of the prior injuries, treatments, and workers’
compensation claims, yet he denied any previous medical history
other than the 2012 back surgery. Instead, he continually sought
work restrictions from his providers; the records showed that the
providers noted his “very slow and deliberate [movements] with
facial grimacing and groaning.” The ALJ concluded that Gallegos
fraudulently induced his providers to place him on complete work
restrictions. After carefully examining the record, we discern no
error in these findings.
C. Mileage Fraud
¶ 33 During the hearing, an investigator testified that Gallegos
submitted requests for medical mileage payments even though he
had not traveled on the dates at issue. The ALJ credited testimony
that Gallegos was actually staying in Denver when he submitted
mileage reimbursement for trips from Fairplay to Denver. While
Gallegos contends that the ALJ should have instead believed his
testimony to the contrary, we cannot substitute our judgment for
that of the ALJ regarding credibility matters. See Halliburton Servs.
17 v. Miller, 720 P.2d 571, 577 (Colo. 1986). The investigator’s
testimony was corroborated by deposition testimony from Gallegos’s
landlord as to the dates Gallegos resided in Fairplay and Denver.
We found no record support for Gallegos’s assertion that the
employer’s counsel “coerced” this testimony.
D. Remaining Arguments
¶ 34 Gallegos argues that the ALJ precluded him from questioning
his doctors during the hearings. But section 8-43-210, C.R.S.
2024, allows medical records, physician reports, and records of the
employer to be admitted without their authors being present to
authenticate them. Therefore, his objection that he was unable to
cross-examine the doctors is without foundation.
¶ 35 He also alleges error in the “reassigning” of his case to a
different ALJ. The record shows that ALJ Elsa Martinez Tenreiro
initially convened the hearings in Gallegos’s matter. However, the
case was reassigned to ALJ Steven Kabler when ALJ Martinez
Tenreiro became incapacitated. ALJ Kabler reviewed the hearing
record and the exhibits and issued the ALJ order. In workers’
compensation cases, due process is satisfied if the ALJ either reads
18 a transcript of testimony or hears live testimony. See Bodensieck v.
Indus. Claim Appeals Off., 183 P.3d 684, 686 (Colo. App. 2008).
¶ 36 Because Gallegos’s remaining arguments in this appeal (for
instance, that Dr. Noel was “unduly influenced” by Dr. Primack’s
reports) are conclusory, we won’t address them. See Sanchez v.
Indus. Claim Appeals Off., 2017 COA 71, ¶ 62, 411 P.3d 245, 259
(declining to address the claimant’s argument because he offered
conclusory sentences with no citations to legal authority in support
of the argument).
V. Disposition
¶ 37 The Panel order is affirmed.
JUDGE PAWAR and JUDGE LUM concur.