Opinion
W.C. No. 3-952-159
February 5, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant suffered a compensable occupational disease and awarded workers' compensation benefits. We dismiss the petition to review the award of temporary disability benefits, and otherwise affirm the order.
The claimant was employed as a chemist in the Cotter Corporation's uranium milling laboratory from 1958 to 1979. In 1974, the claimant was diagnosed with an ulcer and began treatment for gastrointestinal problems. He retired from the Cotter Corporation in 1979.
In 1984, the claimant underwent a laparotomy and small bowel resection. A tissue biopsy revealed a malignant lymphoma. The claimant was subsequently diagnosed with non- Hodgkin's lymphoma of the gastrointestinal tract.
On conflicting evidence, the ALJ found that the claimant was injuriously exposed to uranium during his employment at the Cotter Corporation. The ALJ also determined that the claimant sustained his burden of proving that the non-Hodgkin's lymphoma is due to an occupational disease. In so doing, the ALJ gave the greatest weight to the testimony and reports of Dr. Kelly and rejected the contrary opinions of Dr. Saccomanno. Dr. Kelly opined that the claimant's lymphoma is the result of the inhalation of purified uranium during his employment for the Cotter Corporation, and its associated radiation. Consequently, the ALJ ordered the respondents to provide medical benefits. The ALJ also awarded temporary disability benefits commencing March 4, 1979.
I.
On review the respondents contend the ALJ erred in admitting Dr. Kelly's testimony. The respondents contend the testimony does not meet the special admissibility standard for "novel scientific knowledge" established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We conclude that Dr. Kelly's testimony is not subject to the Frye standard.
The Frye standard has been applied as a special foundational requirement for novel or new scientific devices or processes involving the evaluation of physical evidence, such as lie detectors, experimental systems of blood typing, fingerprints, voice prints, identification of human bite marks, microscopic analysis of gunshot residue, and human leukocyte antigen testing. In City of Aurora v. Vaughn, 824 P.2d 825 (Colo.App. 1991), the court held that the Frye standard did not apply to the admission of expert medical testimony in a workers' compensation claim concerning the extent of an injured worker's hearing impairment where the testimony was based on various audiometric tests including an audiogram. In Esquibel v. Esquibel, W.C. No. 3-109-613 (October 11, 1994), we expressly relied upon City of Aurora v. Vaughn, supra, to conclude that the Frye standard was not applicable to the admission of a physician's opinion that a claimant's lung cancer was caused by radiation exposure in the workplace, where that opinion was based upon documentation of radiation exposures in the workplace and three separate epidemiological calculations. The respondents' arguments do no persuade us to depart from our conclusions in Esquibel.
Dr. Kelly testified that his opinion concerning the existence of an occupation cause for the claimant's illness was based upon the diagnosis of non-Hodgkin's lymphoma, the 1996 Acculab testing of the claimant's 1984 gastrointestinal tissue biopsy which showed excessive concentrations of uranium, data concerning the claimant's workplace exposure to uranium, and epidemiologic literature concerning cases with similar radiation exposure, some of which included uranium mill workers. (Tr. November 18, 1997, Vol. II pp. 75, 141, 142, 149, 158, 161, 166, 175, 211). Although the record contains conflicting exposure data, neither party asserts that the data constitutes "novel scientific knowledge." Further the respondents stipulated to the accuracy of the 1996 Acculab testing of the claimant's gastrointestinal tissue. (Tr. May 19, 1997 pp. 5, 200). Under these circumstances, we conclude that Dr. Kelly's testimony is not the type of evidence which is subject to the special foundational requirements in Frye, and thus, the respondents' arguments do not support the conclusion that the ALJ erroneously admitted Dr. Kelly's testimony .
II.
Next, the respondents contend the ALJ erred in precluding them from presenting Dr. Saccomanno's opinion that the cause of the claimant's illness is bacterial in nature. We disagree.
The ALJ has broad discretion in determining the admissibility of expert testimony. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). Accordingly, we may not interfere with the ALJ's determination unless it constitutes an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Due process requires that parties be afforded notice of the legal and factual issues to be litigated. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990). For this reason, the Workers' Compensation Rule of Procedure Part VIII(E)(3), 7 Code Colo. Reg 1101-3 at 24, provides that the parties are "under a continuing duty to timely supplement or amend responses to discovery up to the date of the hearing." Furthermore, under Rule VIII(A)(5), a party is prohibited from adding a witness or issue after the filing of an application or response to application for hearing, in the absence of an agreement from the opposing party or a showing of "good cause." See also § 8-43-207(1)(I), C.R.S. 1998.
Moreover, the ALJ has wide discretion in determining whether "good cause" has been established. Donn v. Industrial Claim Appeals Office, 865 P.2d 873 (Colo.App. 1993); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). In resolving this issue, the ALJ may consider the inconvenience and expense to the opposing party. Cf. Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra.
Here, the respondents endorsed Dr. Saccomanno as an expert witness to testify on the issue of causation, and the claimant exercised his right to discover the nature of Dr. Saccomanno's opinions. On July 1, 1996, the claimant propounded Interrogatories which requested a "summary" of the respondents' expert testimony. Thereafter, and during the five-day hearing on the issue of compensability, the parties vigorously litigated whether the respondents complied with discovery.
On December 26, 1996, the ALJ ordered a videotaped deposition of Dr. Saccomanno. During the April 15, 1997 deposition, Dr. Saccomanno opined there was no "identifiable cause" of the claimant's lymphoma. (Saccomanno depo. p. 15). Dr. Saccomanno's deposition was admitted on the second day of the hearing before the ALJ. (Tr. May 20, 1997 p. 213).
On the last day of the hearing, the respondents sought to present Dr. Saccomanno's live testimony. Specifically, the respondents asserted that one week earlier Dr. Saccomanno heard a pathology lecture which changed his opinion about the claimant's diagnosis. As a result of the new information, Dr. Saccomanno believed the claimant's non-Hodgkin's lymphoma was caused by a "bacterial source." (Tr. November 19, 1997 p. 10). The claimant objected to the presentation of this testimony on grounds of surprise. (Tr. November 19, 1997 p. 6).
We conclude that the disputed testimony reflects an effort by the respondents to introduce a new defense theory or factual issue concerning the cause of the claimant's condition. It is undisputed that the claimant did not have notice of the new theory prior to the presentation of his case in chief or at any time before the respondents offered Dr. Saccomanno's live testimony. Under these circumstances, we cannot say that the ALJ's refusal to allow the disputed testimony exceeds the bounds of reason, or constituted an abuse of discretion.
Moreover, we reject the respondents' contention that giving the claimant additional time to prepare his cross-examination of Dr. Saccomanno would have prevented any prejudice. The claimant did not request a continuance and based upon this record, the ALJ could reasonably infer that the admission of the disputed testimony so compromised the claimant's ability to present his claim that a continuance was an insufficient alternative. See Williams v. Chrysler Corporation, W.C. No. 4-199-481 (January 16, 1996).
III.
Finally, the respondents contend the ALJ erred in requiring them to pay temporary disability benefits. We conclude that the award of temporary total disability benefits is not currently subject to review.
Section 8-43-301(2), C.R.S. 1998, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. Therefore, orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An order may be partially final and partially interlocutory, and orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute, and consequently, are not subject to review. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986); C F I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986); Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) (order requiring payment of benefits "to which the claimant may be entitled" was not yet reviewable).
The ALJ ordered the respondents to pay "temporary total and temporary partial disability benefits" commencing March 4, 1979. However, the ALJ did not determine the claimant's average weekly wage or his temporary disability compensation rate. Further, the ALJ did not determine when the claimant was less than totally disabled.
We also note that at the commencement of the hearing, the respondents indicated that the matter was a "full contest," and the record does not reveal any stipulation concerning the claimant's average weekly wage, temporary disability compensation rate or periods of temporary and partial disability. (Tr. May 19, 1997 p. 4); see also post-hearing position statements dated December 3, 1997. It follows that the ALJ's order concerning temporary disability is not currently subject to review.
IT IS THEREFORE ORDERED that the respondents' petition to review the ALJ's order dated January 28, 1998, concerning temporary disability is dismissed without prejudice.
IT IS FURTHER ORDERED that in all other respects, the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed February 5, 1999 the following parties:
Lynn E. Boughton, 1602 Cedar Avenue, Canon City, CO 81212
Cotter Corporation, 12596 W. Bayaud Avenue, Suite 350, Lakewood, CO 80228-2019
Michael Tully, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Stephen A. Jones, Esq., P.C., 1700 Broadway, Suite 1910, Denver, CO 80290
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Brent Eisen, Esq., Subsequent Injury Fund, PO Box 300009, Denver, CO 80246-9015
Cynthia M. Pring, Esq., PO Box 60219, Colorado Springs, CO 80960-0219 (For Claimant)
Diane M. Astourian, Esq., P.O. Box 6094, Colo. Spgs., CO 80934-6094 (For the Claimant)
James E. Elliott, Jr., Esq., The Elliott Law Offices, 7884 Ralston Road, Arvada, CO 80002-2434 (For Respondents)
Alan Epstein, Esq. Larry R. Martinez, Esq., 1200 17th Street, Suite 1700, Denver, CO 80202 (For Respondents)
BY: _________________