Opinion
W.C. No. 4-476-933
November 19, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded medical benefits. We affirm.
In April 2000 the claimant suffered an admitted right shoulder injury. As a result of the injury, the claimant underwent a distal clavicle resection on November 8, 2000. The ALJ found the surgery resulted in a worsening of the claimant's right shoulder pain.
Following the shoulder surgery the claimant experienced numerous syncopal episodes which occurred in a variety of settings and circumstances. Dr. Tyler referred the claimant to Dr. Barber to determine the cause of the fainting episodes. Following a positive "tilt table test" in which the claimant's blood pressure dropped during a syncopal episode, Dr. Barber opined the claimant suffered from cardiogenic syncopal triggered by pain from the industrial injury. (Claimant's Hearing Exhibit 11). Dr. Adams and Dr. Polanco agreed that the fainting reflected a vasovagal response to pain from the industrial injury. (Claimant's Hearing Exhibits 14, 16).
Crediting the opinions of Dr. Tyler, Dr. Barber, Dr. Polanco and Dr. Adams and rejecting the contrary opinions of Dr. Sliver and Dr. Sparr, the ALJ found that pain from the industrial injury caused vasovagal responses and the claimant's consequent fainting. Therefore, the ALJ ordered the respondents to pay for the syncope treatment by Dr. Tyler and his referrals.
I.
On review, the respondents contend there is no "competent and reliable medical evidence" to support the ALJ's finding that the syncopal episodes are causally related to the industrial injury. In particular, the respondents contend the medical experts the ALJ relied upon were not experienced in syncope, and Dr. Tyler admitted he was "clueless" about the etiology of syncope. Further, the respondents contend that there is no medical literature which suggests pain as a trigger for syncopal episodes. We reject these arguments.
Initially, we note that the respondents' Designation of Record includes the "complete Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. Further, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
Under § 8-42-101(1)(a), C.R.S. 2003, the respondents are liable for medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). It is the claimant's burden to prove a causal connection between the industrial injury and the medical condition for which treatment is requested. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Medical evidence is neither required, nor dispositive of causation. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). The claimant's testimony, if credited, may alone constitute substantial evidence to support the ALJ's determination concerning the cause of the claimant's condition. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant's testimony was substantial evidence that his employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical evidence is presented, it is the sole prerogative of the ALJ as the fact finder to resolve conflicts in the evidence and determine the probative weight of the various expert opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We must uphold the ALJ's factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2003; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard we are bound by the ALJ's credibility determinations unless his findings are rebutted by such hard, certain evidence that as a matter of law the ALJ would err in crediting particular testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, there is substantial evidence in the testimony of the claimant and her husband to establish a causal connection between the industrial injury and the syncopal episodes. Thus, the ALJ's findings on causation are binding on review.
Moreover, Dr. Tyler admitted he was not an expert on syncope. However he stated it was for that reason that he referred the claimant to Dr. Barber, a cardiologist. Dr. Tyler then deferred to Dr. Barber's opinions on the etiology of the claimant's syncopal episodes. (Tyler depo February 28, 2003, pp. 9, 15).
The respondents' arguments notwithstanding, the medical reports of Dr. Barber, Dr. Adams and Dr. Polanco amply support the ALJ's finding that the claimant proved a causal connection between the industrial injury and the fainting episodes. Further, their medical opinions are corroborated by the medical articles admitted during Dr. Tyler's deposition, which suggest that vasovagal syncopal episodes may be induced by pain. (Tyler depo. February 5, 2003; Exhibits B, C, D).
In contrast, Dr. Sparr was under the belief that the claimant experienced syncope before the industrial injury. For this reason, Dr. Sparr opined that the syncope was not related to the industrial injury. (July 12, 2003). However, there is substantial evidence in the record that the claimant had no history of syncope before November 2000. Further, Dr. Silver did not render an opinion on the cause of the syncopal episodes. ( See September 26, 2002). Thus, we reject the respondents' contention that the ALJ's findings of fact are overwhelmingly rebutted by the opinions of Dr. Sparr and Dr. Silver.
II.
The respondents also contend the ALJ erroneously considered the claimant's calendar of syncopal events over their objection that the calendar is inadmissible hearsay. We perceive no reversible error.
Evidentiary determinations are within the ALJ's discretion. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ's ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard for an abuse of discretion is whether the ruling is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Workers' compensation claims are governed by the Colorado Rules of Evidence (CRE). Section 8-43-210, C.R.S. 2003. CRE 103(a), provides that an erroneous admission of evidence is not reversible error unless a "timely" objection appears of record.
The claimant offered a hand written calendar which noted the date and time of each syncopal episode. (Claimant's Exhibit 31). The respondents objected to the admission of Exhibit 31 on grounds the calendar contained "extraneous remarks" which were prejudicial. (Tr. p. 50). The respondents also argued the claimant failed to establish a foundation for the exhibit. (Tr. p. 125). The following exchange then occurred.
THE COURT: And, Respondents, your objection is, simply, that: "There is no foundation for the Exhibit"?
RESPONDENTS' COUNSEL: That is correct. An I believe I also, earlier, objected when it was being attempted to be introduced under the testimony of [the claimant], and I will continue that objection that: "There are remarks that are prejudicial," in addition to the objection on "foundation."
THE COURT: I'm going to overrule the objections. Since the only objection is that "There is no foundation for the Exhibit," and any extraneous, prejudicial matters, can, easily, be discarded, because we don't have a jury here.
RESPONDENTS' COUNSEL: Okay.
THE COURT: Exhibit 31, is admitted.
CLAIMANT'S COUNSEL: Okay
RESPONDENTS' COUNSEL: And I also object, to the extent that there is hearsay involved.
THE COURT: Well, it is too late. That would have been a good one, but it is too late now. (Tr. pp. 127, 128).
Because the record supports the ALJ's determination that the hearsay objection was not timely made, we cannot say the ALJ's refusal to exclude the calendar of events exceeds the bounds of reasons.
In any case, CRE 803(4) provides that a statement for purposes of medical diagnosis or treatment which describes symptoms, pain or sensations is not hearsay insofar as reasonably pertinent to diagnosis or treatment. The claimant testified the calendar notations were made contemporaneous to each event and that she prepared the diary to assist her physician in the diagnosis and treatment of the condition. (Tr. p. 49). Therefore, even if the ALJ had considered the respondents' hearsay objection the record does not compel a contrary result.
Furthermore, the erroneous admission of evidence is not reversible error unless it affects the substantial right of a party and the party challenging a ruling must show sufficient prejudice before it is reversible error. CRE 103(a); Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984). An error which is not prejudicial will be disregarded. Section 8-43-310 C.R.S. 2003; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
The claimant testified in detail to the dates and times of her syncopal episodes. Similarly, the claimant's husband testified extensively about his wife's history of syncope after the November surgery. Thus, Exhibit 31 was essentially cumulative and the ALJ's err, if any, was harmless. See A R Concrete Construction v. Lightner, supra. IT IS THEREFORE ORDERED that the ALJ's order dated March 31, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below onNovember 19, 2003 by A. Pendroy.
Juanita Hancock, 8656 Chancellor Dr., Colorado Springs, CO 80920
Maxim Healthcare, 7701 Campus Dr., Colorado Springs, CO 80909
Reliance National Insurance Co., c/o Terry Thornburg, Speciality Risk Services, Inc., P.O. Box 221700, Denver, CO 80222
Michael w. McDivitt, Esq., 19 E. Cimmarron, Colorado Springs, CO 80903 (For Claimant)
Gregory Daniels, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)