Opinion
W.C. No. 4-652-824.
July 23, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated March 26, 2008, that denied and dismissed his request for permanent total disability (PTD) benefits. We affirm.
The ALJ's findings are summarized as follows. The claimant worked as a machinist. On January 22, 2005, he sustained bilateral carpal tunnel injuries to both wrists while working. The claimant received medical treatment for his carpal tunnel injuries, including surgery. A Division-sponsored independent medical examination (DIME) resulted in the claimant being placed at maximum medical improvement as of December 12, 2005, with scheduled impairment ratings for his upper left and right extremities of 16 percent and four percent, respectively. The scheduled impairment ratings were subsequently upheld by another ALJ after a hearing at which the claimant spoke English and did not use an interpreter. A functional capacity evaluation (FCE) performed in December 2005 demonstrated that the claimant could perform at a modified, medium-level of work. The claimant's carpal tunnel condition has improved. Several of the physicians involved in the case approved of the FCE and the vocational evidence presented by the respondents' vocational expert demonstrate that employment for the claimant exists within his work restrictions. One of the physicians, Dr. Orent, performed an independent medical examination of the claimant and opined that the FCE made it clear that the claimant was not permanently and totally disabled. He further opined that there were no medical reasons why the claimant could not work within restrictions. The ALJ was not persuaded that the claimant was entitled to PTD benefits and denied and dismissed his claim.
The ALJ noted that Drs. Gellrick, Danahey, and Orent rendered medical opinions consistent with the FCE. The FCE recommendations included limiting the claimant's work capacities to "modified medium" work levels and provided specific limitations for various functions such as lifting and repetitive movements. Exhibit D at 42.
The ALJ credited the opinions of Ruthe Hannigan, who testified as an expert witness in the field of vocational rehabilitation. Tr. (1/28/08) at 101. She referred to the FCE for defining the claimant's functional capacities. Tr. (1/28/08) at 105, 111; Exhibit P at 96. Ms. Hannigan relied on the physicians regarding the claimant's medical condition, which she considered to be "standard protocol." Tr. (1/28/08) at 105, 111-12, 119, 140. Her review of the claimant's case included reviewing medical records, interviewing, determining his work history, and researching to determine job options in the labor market in terms of the claimant's physical capacities. Tr. (1/28/08) at 128. She identified several job positions that she determined to be consistent with the work restrictions imposed by the FCE. Tr. (1/28/08) at 107-14; Exhibit P at 101, 103-05, 145. She screened jobs, calling employers and recommending them based on what the doctors indicated that the claimant could physically perform. Tr. (1/28/08) at 202. She considered the claimant's English skills to be "just fine," and his handwriting to be "excellent." Tr. (1/28/08) at 110, 122. She opined that there were "still hundreds of jobs between modified medium and sedentary that exist." Tr. (1/28/08) at 112. She explained that she sorted through various potential jobs to insure that they were within the claimant's functional capacities and restrictions, including his language skills. Tr. (1/28/08) at 115. She explained that a modified medium level of work "simply means that he cannot lift as much as the classic medium duty category lifts." Tr. (1/28/08) at 182. She considered the Dictionary of Occupational Titles (DOT) to be "a very broad gross generalization for all national jobs across the United States" and "nowhere near as precise as actual stuff in your own labor market." Tr. (1/28/08) at 134.
The ALJ found persuasive the opinions of Dr. Orent. Dr. Orent issued a report on February 28, 2007. Exhibit D. The claimant spoke English during Dr. Orent's examination. Exhibit S at 346. Dr. Orent was of the opinion that, according to the FCE, the claimant was not permanently and totally disabled due to his injury of January 22, 2005. Exhibit D at 13. He concluded by stating "I certainly perceive no medical reasons why this claimant would not be able to work with the restrictions as provided." Exhibit D at 14. The parties deposed Dr. Orent, who was certified as an expert in occupational medicine. Exhibit S at 297. Dr. Orent had concerns about the apparent impingement of the claimant's left shoulder, and thought that the impingement restrained the claimant's capabilities somewhat. Exhibit S at 307. He opined that several of the jobs identified by Ms. Hannigan were jobs that the claimant could perform. Exhibit S at 308-11. He agreed that the claimant was capable of working in the modified medium duty category of work. Exhibit S at 313-14. He opined that the claimant was "capable of a variety of different employment options," and that "physically there are many things he can do." Exhibit S at 316, 320. Dr. Orent stated that the claimant was "clearly capable of some work" in the modified medium category. Exhibit S at 339.
The claimant asserts that, based upon the evidence presented at the hearing, the ALJ erred by not finding him to be entitled to PTD benefits. A claimant is entitled to PTD benefits if the claimant is "unable to earn wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2007. Under the statute the claimant carries the burden of proof to establish by a preponderance of the evidence that he is permanently and totally disabled. The overall objective is to determine whether employment is reasonably available to the claimant under his particular circumstances. In making this determination the ALJ may consider the effects of the industrial injury in light of the claimant's "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
Ultimately, whether a claimant is permanently and totally disabled is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, supra; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Because the question of whether the claimant proved he is entitled to PTD benefits is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to view the evidence in a light most favorable to the prevailing party and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). The fact that some evidence, if credited, might support a different result affords no basis for relief on appeal. Weld County School District Re-12 v. Bymer, supra. In this regard, we note that the credibility of expert witnesses is a matter within the province of the ALJ as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). It is according to this deferential standard of review that we consider the claimant's assertions.
I.
The claimant first argues that the evidence before the ALJ indicated that any job available required modifications in order to accommodate the claimant's disability, but that there is no corresponding evidence as to what job modifications were needed or available. In support of his contention the claimant argues that the respondents' vocational expert failed to provide data to support her opinion that jobs were available to the claimant. As we understand the claimant's contentions, it is essentially that the opinions of the respondents' vocational expert were based on conjecture, rather than on facts.
The respondents' vocational rehabilitation expert explained that her vocational evaluation of the claimant did not include placement services. Tr. (1/28/08) at 101. Although the claimant argues that the respondents' vocational expert ignored the FCE, Hannigan testified that she performed labor market research and identified jobs within the claimant's transferable skills and physical restrictions. Tr. (1/28/08) at 106-11, 115; Exhibit P at 101-06. The claimant's challenges to the opinions of Hannigan, who was accepted as an expert in vocational rehabilitation, go to the weight of her testimony. See Yeager v. Travelers Insurance Co., 515 P.2d 117, 120 (Colo.App. 1973) (not selected for official publication). Accord Yeager Garden Acres, Inc. v. Summit Constr. Co., 32 Colo. App. 242, 244-45, 513 P.2d 458, 459060 (1973). The ALJ is vested with the broadest discretion in assessing the weight and sufficiency of the evidence. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). We may not reweigh the evidence and substitute our judgment for that of the ALJ. See City of Loveland Police Dep't v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006), citing Bodaghi v. Department of Natural Resources, 995 P.2d 288, 303 (Colo. 2000) (reciting standard of review and supreme court's admonishment against reviewing court "parsing through the record and testimony . . . and making . . . own findings of fact").
II.
The claimant further asserts that the ALJ erred by relying on the opinions of the respondents' vocational expert because she did not refer to essential job functions of potential employment as provided by the Dictionary of Occupational Titles (DOT). The DOT lists job descriptions and is used in federal social security cases. See, e.g., Hackett v. Barnhart, 475 F.3d 1166 (10th Cir. 2007). In addition, the claimant argues that the opinions of Hannigan and Dr. Orent, who also opined that the claimant is not permanently totally disabled, are contrary to a provision in the medical treatment guidelines promulgated by the Director of the Division of Workers' Compensation. The medical treatment guidelines were established by the Director pursuant to an express grant of statutory authority. See § 8-42-101(3.5)(a)(II), C.R.S. 2007; Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003). The guidelines are to be used by health care practitioners when furnishing medical treatment under the Workers' Compensation Act. Section 8-42-101(3)(b), C.R.S. 2007. The Division's medical treatment guidelines are regarded as the accepted professional standards for care under the Workers' Compensation Act. Rook v. Industrial Claim Appeals Office 111 P.3d 549 (Colo.App. 2005).
The claimant refers to a provision of the medical treatment guidelines pertaining to carpal tunnel syndrome, which advises medical treatment providers to "provide specific physical limitations. . . .:" W.C. Rule of Procedure 17, Exhibit 2 (B)(10), 7 Code Colo. Reg. 1101-3 at 152. The claimant argues that labeling the claimant's work restrictions as "modified medium" violates that regulation. Even assuming, arguendo, that expert medical and vocational opinions regarding PTD run afoul of this regulatory provision, we find no error by the ALJ in crediting those opinions. The standard for determining PTD is whether the claimant is "unable to earn any wages in the same or other employment." Section 8-40-201(16.5)(a). See also, § 8-40-201(8), C.R.S. 2007 ("employment" means "any trade, occupation, job, position, or process of manufacturing, or any method of carrying on" same). We decline to require either the application of the DOT or the medical treatment guidelines for carpal tunnel syndrome in determining the issue of PTD in this matter.
Moreover, Hannigan's testimony is not incredible as a matter of law. Testimony is not incredible as a matter of law unless it is rebutted by hard, certain evidence which shows the testimony is contrary to established or conceded facts or is contrary to the laws of nature. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). See also, Martinez v. Regional Transportation Dist., 832 P.2d 1060, 1061 (Colo.App. 1992) ("There is no principle more fundamental to appellate jurisprudence than the maxim that an appellate court does not decide the facts and may not substitute its judgment for that of the fact-finder.") We find no error in the ALJ's decision to credit the opinions of the respondents' vocational expert.
III.
The claimant also refers to evidence in the record that could support a finding of PTD, but the existence in the record of evidence that would support a contrary result affords no relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
IV.
The claimant argues that the ALJ erred by not allowing him to present expert testimony to rebut the report of the respondents' vocational rehabilitation expert. We note two instances during the hearing in which the respondents' counsel objected to the testimony of the claimant's vocational expert, Doris Shriver, on the ground that she was providing rebuttal testimony. The ALJ overruled the objection both times. Tr. (1/28/08) at 32-33, 44-45. Nonetheless, the claimant infers that he was prevented from introducing evidence that would have countered the opinions of the respondents' vocational expert. See § 8-43-310, C.R.S. 2007 (reviewing court shall disregard irregularity or error unless complaining party damaged thereby); CRE 103(a) ("error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.")
The record includes an order entered by a prehearing administrative law judge (PALJ) in relation to a prehearing conference held on September 11, 2007. The PALJ ordered the respondents to produce to the claimant their vocational expert's report, including "all job offers, evidence of available jobs, results of labor market surveys and/or job searches, and all other information concerning potential employment for the Claimant. . . ." Prehearing Conference Order Relating to Prehearing Conference Held September 11, 2007 (Prehearing Conference Order) at 2 (unpaginated), ¶ 1. The PALJ also ordered the claimant to produce to the respondents "all rebuttal evidence pertaining to Respondents' vocational expert's report no later than ten days before the October 30, 2007 Hearing . . ." Prehearing Conference Order at 2, ¶ 2. It further appears from the record that the PALJ subsequently vacated the October 30, 2007 hearing date. A corresponding order dated November 2, 2007 ("Nunc pro tunc" October 30, 2007), includes the following handwritten notation: "The parties assert that all discovery is complete and vocational evaluation reports will be exchanged well before the hearing date."
A PALJ is authorized to "preside over prehearing conferences" and, among other things, make evidentiary rulings. Section 8-43-207.5(2), C.R.S. 2007. The statutory scheme contemplates that the "propriety" of a PALJ's prehearing order may be addressed at a later hearing before an ALJ. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246, 1254 (Colo. 1998). In this case, the parties reviewed the PALJ's prehearing conference order with the ALJ. The respondents' counsel explained that the claimant failed to provide his rebuttal testimony concerning the report of the respondents' vocational rehabilitation expert as required by the PALJ's order. Tr (12/10/07) at 21, 27-28. It does not appear that the claimant disputed opposing counsel's assertions concerning his failure to comply with the PALJ's order. Instead, the claimant's counsel responded that the PALJ could not "limit the ability of the [ALJ] to hear rebuttal evidence of a nature such as an expert opinion concerning permanent total disability. . . ." Tr. (12/10/07) at 26. The ALJ considered the claimant's response to constitute a "motion for reconsideration" of the PALJ's order and upheld the previous directive that the claimant provide to the respondents all rebuttal evidence concerning their vocational expert's report within ten days of the hearing. Tr. (12/10/07) at 29-30. The respondents moved to strike any reference by the claimant's vocational expert to the report of the respondents' vocational expert. Tr. (12/10/07) at 21. The ALJ ruled that "rebuttal testimony that should have been supplied within ten days of the hearing date is stricken." Tr. (12/10/08) at 32. Thus, the ALJ — not the PALJ — ordered the sanction of striking any rebuttal testimony from the claimant's vocational expert.
The parties recognize that the ALJ has broad discretion in conducting hearings and making evidentiary rulings. They further acknowledge that we may not disturb the ALJ's evidentiary rulings unless the ALJ abuses her discretion. In order to constitute an abuse of discretion, the ALJ's ruling must, under the totality of the circumstances, exceed the bounds of reason. See, e.g., Cox v. ADT Security Systems, Inc., W.C. Nos. 4-414-252 4-414-253 (October 30, 2000) (affirming exclusion of previously undisclosed evidence).
A party's disobedience of a discovery order warrants sanctions under § 8-43-207(1)(e), C.R.S. 2007, if the noncompliance is intentional, deliberate, a flagrant disregard of discovery obligations, or a substantial deviation from reasonable care in complying with such obligations. Reed v. Industrial Claim Appeals Office, 13 P.3d 810,813 (Colo.App. 2000). The claimant failed to produce his expert rebuttal evidence notwithstanding a specific prior order to "produce to Respondents all rebuttal evidence pertaining to Respondents' vocation expert's report . . ." and did not provide any explanation as to why he failed to do so. In light of the previous order directing the claimant to provide expert rebuttal evidence and his corresponding failure to comply without explanation, the ALJ could infer a deliberate, or "willful," intent not to comply with discovery under the statute. See Shafer Commercial Seating, Inc. Industrial Claim Appeals Office, 85 P.3d 619, 621 (Colo.App. 2003) ("willful" under the Act means deliberate intent and party's failure to comply with order to compel sufficient to support sanction striking witnesses and affirmative defenses). We are therefore persuaded by our review of the record that the ALJ did not err by striking expert rebuttal testimony under the circumstances.
The claimant's remaining arguments do not persuade us to disturb the ALJ's decision.
IT IS THEREFORE ORDERED that the ALJ's order issued March 26, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
ANDREW BURCHARD, THORNTON, CO, (Claimant)
HARTFORD FIRE INSURANCE CO., Attn: NANCY SLOVER, HOUSTON, TX, (Insurer)
KEVIN C SMITH, ESQ, Attn: CYPRESS POINT DENVER, CO, (For Claimant)
HALL EVANS, LLC, Attn: BRET ROUNDY, ESQ., DENVER, CO, (For Respondents)
STOLLE MACHINERY COMPANY, Attn: STEVE PENN (EHS MANAGER), ENGLEWOOD, CO, (Other Party)