Gallegos v. ICAO

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

order.

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.

19