Opinion
W.C. No. 3-101-431.
October 3, 2006.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated May 18, 2006 that denied the claimant's request for permanent total disability benefits. We affirm the order in part, set it aside in part and remand for entry of a new order.
The relevant issue on appeal was the ALJ's determination on permanent total disability and his pertinent findings of fact on that issue are as follows. The claimant sustained an admitted injury to her right shoulder and back while moving a patient on September 12, 1991. The claimant underwent athroscopic repair of her right shoulder and two lumbar surgeries. The claimant reached maximum medical improvement on April 5, 1995. The claimant participated in three functional capacity evaluations (FCE). The first performed on May 18, 1993 reflected that the claimant did not put forth maximum effort and might indicate self limitation. The evaluator's conclusions on the second FCE performed on February 8, 2005 were subjective and objective testing was either not performed or total effort was not provided. The third FCE was performed on August 15, 2005 and the evaluator noted numerous inconsistencies over the course of the evaluation. The ALJ found the August, 2005 FCE to be credible and persuasive.
The claimant presented a very bleak picture of her abilities at hearing contending that she doesn't go shopping much and when she goes out often uses a wheelchair or a cane and lies down most of the time. Respondents presented videotapes of the claimant which demonstrate that the claimant is substantially more active than she portrayed at the hearing or to her physicians. The videotapes demonstrate a noticeable absence of pain behavior. The claimant's testimony regarding her physical and psychological restrictions and her inability to work was found by the ALJ to be not credible.
The respondent's vocational expert concluded that jobs exist in the claimant's labor market that are within her restrictions and abilities. This vocational expert pointed out discrepancies between the claimant's self reported restrictions and his observations in person and what he saw in video tapes. He considered the claimant's need for catheterization and agreed with Dr. Parry that catheterization should not prevent the claimant's return to work. The claimant's vocational expert relied on the February 8, 2005 FCE in reaching her conclusion that the claimant was unable to return to work. She did not compare the FCE with the claimant's daily activities. The ALJ found the respondent's vocational expert opinion that the claimant is capable of employment to be credible and persuasive.
The claimant contends that the ALJ erred in allowing into evidence videotapes of surveillance conducted by the respondents. The claimant citing People v. Saiz 32 P.3d 441 (Colo. 2001), maintains, as she did at the hearing, that she objected on the issue of foundation because there might be editing of the tape and that "questioning the editor was a right before admission of evidence". In Saiz the Court ruled that there is no rule or principle of evidence that requires the admission of taped recording in addition to or in the place of testimony about the events depicted in the recordings. Videotapes, like other forms of evidence, are subject to the rules governing the admissibility of evidence and are not automatically admissible. However, the court also noted that videotapes are ordinarily competent to illustrate or explain anything a witness might describe in words.
The ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2006; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not interfere with the ALJ's evidentiary rulings in the absence of an abuse of discretion. Denver Symphony Ass'n v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974).
The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Moreover, the party alleging an abuse of discretion 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).
Here, the claimant had seen the videos in advance and stipulated that the person in the video tapes was her. The claimant expressed concern that part of the tape might have been edited to remove things that would be helpful to the claimant. Tr. (5/10/2005) at 57. The claimant agreed that nothing had been faked to show the claimant doing something that she didn't do. Tr. (5/10/2005) at 59. The ALJ offered the claimant the opportunity of rebuttal testimony. Tr. (5/10/2005) at 60. Moreover, the claimant could have subpoenaed the investigator or editor of the videos for questioning at the hearing.
The claimant's identification of herself provided a proper foundation for admission of the exhibit, see CRE 901(a) and (b)(1), that the exhibit constituted evidence under CRE 1001(2) which could be admitted once a proper foundation had been laid, and in effect, that the absence of the investigator or editor might affect the weight but did not affect the admissibility of this evidence. See Kortz v. Guardian Life Insurance Company of America, 144 F.2d 676 (10th Cir. 1944) (a photograph is admissible when it is shown that it is a correct likeness of the person it purports to represent and that fact may be shown by any competent witness); see also People v. Avery, 736 P.2d 1233 (Colo.App. 1986); Copeland v. City of Aurora, W.C. 3-907-084, 3-896-046, 3-949-827, 3-954-423 (April 15, 1991). Under these circumstances we can not say that the ALJ abused his discretion in allowing into evidence the surveillance videotapes.
The claimant next contends that the ALJ erred in admitting into evidence the August 15, 2005 (FCE). (Exhibit FF). The claimant did not contest the respondents' right to arrange for an FCE but did request the presence of an occupational therapist as an observer at the scheduled FCE. The claimant filed a motion for protective order regarding the FCE. In an order dated June 8, 2005 Prehearing Administrative Law Judge Purdie denied the motion concluding that Section 8-43-404, C.R.S. 2006 allows a "physician" to be present at a medical examination but an occupational therapist is not a "physician". ALJ Friend admitted the FCE, over objection, into evidence at the hearing. Tr. at 19.
Section 8-43-404(1), C.R.S. 2006 provides that the employee shall from time to time submit to examination by a physician or surgeon or to a vocational evaluation, which shall be provided and paid for by the employer or insurer. Section 8-43-404(2), C.R.S. 2006 provides that the employee shall be entitled to have a physician, provided and paid for by the employee, present at any such examination.
Under 8-43-207.5, C.R.S. 2006, a prehearing conference may be held on an issue of discovery. The PALJ has wide discretion in determining whether a party has established good cause to limit discovery. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not disturb the ALJ's order on discovery in the absence of an abuse of discretion. Robertson v. Chicago Creek Roads, Inc. W.C. No. 4-388-293 (April 3, 2001); see Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Hoffman v. United Airlines, Inc. W.C. No. 4-991-822 (September 23, 2002). As noted above the legal standard on review of an alleged abuse of discretion is whether the ALJ's order 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).
The claimant has cited several cases from other jurisdictions on the issue of an observer during an examination of the claimant. However, recognizing that the circumstances surrounding requests for the presence of third parties or mechanical devices at such examinations are myriad, in Colorado it has been determined that questions concerning the conditions under which a medical examination conducted are to be performed are committed to the trial court's discretion absent agreement by the parties. Resolution of the often competing interests of parties and examining physicians in particular circumstances of particular cases should be made by the trial court. The party seeking protective orders shoulders the burden of establishing the need for such relief. Hayes v. Dist. Court, 854 P.2d 1240, 1245 (Colo. 1993). The trial court has discretion in allowing a plaintiff in a personal injury action to bring a third party or a tape recorder to an exam performed by a physician. Hansen v. State Farm Mut. Auto. Ins. Co., 936 P.2d 584, (Colo.App. 1996).
The claimant's request that an occupational therapist be allowed to observe the FCE as outlined in claimant's supplemental memorandum for protective order was only for the purpose of later providing evidence concerning the techniques used in the evaluation. Here there was no suggestion that the FCE could aggravate the claimant's condition as there was in Scharen v. Northwest Airlines W.C. 3-963-349 (September 10, 1991). The claimant could also have requested that a physician attend the FCE, or requested to cross examine the occupational therapist who conducted the FCE or have the claimant testify regarding what happened at the FCE or videotaped the FCE. These and other factors could have entered into the ALJ's review of the PALJ's order. However, here the ALJ in his written order dated June 16, 2004 ruled that the PALJ's order is an order of the Director and is binding on the parties, and is not subject to review by the merits ALJ upon motion. Further the ALJ at the time of the hearing again ruled that he had no jurisdiction to overrule a ruling of a PALJ. Tr. (9/16/2005) at 18.
We hold that the PALJ's order is properly reviewable by an ALJ pursuant to an application for hearing rather than a petition to review to the Industrial Claim Appeals Office. Section 8-43-207.5(2) grants the PALJs the authority to "issue interlocutory orders" and "make evidentiary rulings". Section 8-43-207.5(3) states that orders entered by PALJs are "binding on the parties," but the provision also states that "such an order shall be interlocutory." In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) the Court held that a PALJ's order approving a settlement agreement is final and subject to review. However, the court also stated that orders "relating to a prehearing conference" entered by a PALJ are interlocutory and not subject to appeal. The basis for the court's holding was that orders relating to a prehearing conference are reviewable at a full hearing before the director or an ALJ. In this regard the court stated that "the propriety of the PALJ's prehearing order may be addressed at the subsequent hearing." Orth, 965 P.2d at 1264; Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430, (Colo.App. 2003) (ALJ has authority to override the ruling of a PALJ). In Hernandez v. Safeway W.C. 4-630-249 (October 21, 2005) we concluded that a PALJ's order is properly reviewable by an ALJ pursuant to an application for hearing rather than a petition to review. We adhere to our previous conclusion. Under the circumstances of this case, we conclude that the ALJ failed to exercise his discretion by refusing to review the merits of the propriety of the PALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued May 18, 2006, is set aside to the extent the ALJ did not review the PALJ's order on the issue of an observer at the FCE, and the order is remanded for entry of a new order.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Thomas Schrant
___________________________________ Robert M. Socolofsky
Wendy Brownson-Rausin, Rifle, CO, Valley View Hospital, Greenwood Village, CO, Colorado Hospital Association Trust, Support Services, Mary Ann Donelson, Greenwood Village, CO, Margaret Garcia, Denver, CO, Dworkin, Chambers Williams, P.C., David J. Dworkin, Esq., Denver, CO (For Respondent).
Timothy Quinn, Esq., Denver, CO, (For Claimant).