Opinion
W.C. No. 4-592-624.
May 11, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated November 8, 2010 that awarded the claimant benefits based on a substantial and permanent aggravation of his shoulders and wrist conditions. We affirm.
This matter proceeded to hearing to determine whether the claimant sustained an occupational disease regarding his shoulders and wrists, the claimant's entitlement to temporary total disability benefits and medical benefits, and his average weekly wage.
Several of the ALJ's findings of fact are summarized as follows. The claimant worked for the respondent employer for 15 years as a sheet metal mechanic. He suffered a right rotator cuff tear in 2003 for which the claimant underwent surgery. A physician recommended a right shoulder replacement in 2004, but the claimant used conservative measures. The claimant's right shoulder improved and the claimant continued working without missing time from work due to his shoulders. During his last six months of employment the employer terminated seven other workers, which made the claimant's duties more numerous and difficult. The claimant's condition deteriorated during the last six months of his employment. During that time the claimant worked more overtime and at night. The claimant was in a lot of pain during his last days on the job and had his shoulders fall out of joint while working.
The claimant measured air flow from vents using a capture box that the claimant lifted above his head sometimes hundreds or thousands of times when working in commercial buildings. The claimant hammered sheet metal and used snips to cut the sheet metal. He would also wrestle with heavy equipment while installing the equipment and used a drill overhead. The claimant would also use a hammer drill when affixing duct work to concrete.
The claimant eventually filed this workers' compensation claim. Dr. Healey determined that the claimant's sheet metal work was the primary cause of the claimant's bilateral shoulder disability and bilateral carpal tunnel syndrome. Dr. Motz opined that the worsening of the claimant's bilateral shoulder conditions was related to the claimant's work. In addition, the ALJ found that Dr. Roth opined that the claimant's shoulder problems were occupational, but not related to his previous injury in 2003. The ALJ determined that the claimant sustained a substantial and permanent aggravation of his bilateral shoulder and wrist conditions while the employer was insured by the respondent insurer.
The employer discharged the claimant based on his poor relationships with co-workers and customers. However, the claimant's job became more difficult because of injury to his wrists and shoulder and due to staff reductions. The claimant was often frustrated and irritable. Towards the end of his employment the claimant became severely depressed and was unable to sleep. His emotional condition resulted in conflicts with employees and customers. The ALJ determined that the claimant's physical and emotional injuries were major contributing factors leading to his termination and that the claimant was not responsible for his termination.
The ALJ awarded the claimant temporary total disability benefits and medical benefits. The respondents challenge a procedural ruling, dispute a finding of fact, and argue that the record does not support the ALJ's determinations that the claimant sustained an occupational disease and that the claimant was not responsible for his termination. We are not persuaded to disturb the ALJ's decision.
I.
The respondents argue that the ALJ erred by not allowing the claimant's supervisor to testify. Near the end of the last hearing the respondents sought to present Mr. Frank as a witness. The claimant's counsel objected because he was not listed or endorsed as a witness in the respondents' response to application for hearing and there was no motion to add him as a witness. Tr. (9/13/10) at 125. The claimant's attorney further asserted that he was surprised and had not prepared for Mr. Frank as a witness. Tr. (9/13/10) at 126, 128. The ALJ noted that the claimant claimed he was prejudiced and that Mr. Frank had not been properly endorsed as a witness. The ALJ did not allow Mr. Frank to testify.
The ALJ kept the record open for two weeks, during which time the respondents filed a written motion requesting that the ALJ allow Mr. Frank's testimony to be taken. The ALJ indicates in her final order that she denied the respondents' motion.
The respondents note that Mr. Frank was disclosed as a potential witness during discovery and was listed as a witness by another insurer that did not proceed to hearing. However, we find no error by the ALJ in denying the respondents the opportunity to present Mr. Frank's testimony.
Section 8-43-210, C.R.S., contains the basic evidentiary provisions applicable to workers' compensation claims in Colorado. It states in pertinent part that the Colorado rules of evidence and requirements of proof for civil nonjury cases in the district courts shall apply in all hearings. Department of Labor and Employment v. Esser 30 P.3d 189 (Colo. 2001). Under section 8-43-207(1), C.R.S., "the ALJ is vested with wide discretion in the conduct of evidentiary proceedings." Ortega v. Industrial Claim Appeals Office, 207 P.3d 895, 897 (Colo. App. 2009); see also Eller v. Industrial Claim Appeals Office, 224 P.3d 397, (Colo. App. 2009) (applying an abuse of discretion standard to evidentiary rulings); Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, 222 (Colo. App. 2008) ("An abuse of discretion occurs when the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law.").
Moreover, in order to preserve for review an objection to the exclusion of evidence, generally a proper offer of proof must be made. CRE 103(a); Melton By and Through Melton v. Larrabee 832 P.2d 1069 (Colo. App. 1992). This offer of proof must demonstrate that evidence is admissible as well as relevant to the issues in the case. Denver Decorators, Inc. v. Twin Teepee Lodge, Inc., 163 Colo. 343, 431 P.2d 8 (1967); see also American National Bank v. Quad Construction, Inc., 31 Colo. App. 373, 504 P.2d 1113 (1972). If the substance of the excluded evidence is apparent, no formal offer of proof is required. CRE 103(a)(2); see also Roberts v. C M Ready Mix Concrete Co., 767 P.2d 769 (Colo. App. 1988). However, here it is not readily apparent from a review of the record what Mr. Frank would testify about and the respondents made no offer of proof.
Finally, OAC Rule 13 states that "[o]nly endorsed witnesses may testify in a party's case-in-chief." The rule defines an "endorsed witness" as a "witness listed on either the application or the response to the application, witnesses added by written notice before the date of the setting," or by either an agreement or an order. It does not appear from the record that the respondents properly endorsed Mr. Frank as a witness. We therefore find no abuse of discretion by the ALJ in excluding Mr. Frank as a witness.
II.
The respondents contend that the ALJ's finding of fact regarding the opinion of Dr. Roth is not supported by evidence in the record. The ALJ found that Dr. Roth credibly opined that the claimant's problems with his shoulders are degenerative and occupational in nature, but unrelated to the claimant's right rotator cuff injury on August 25, 2003. Dr. Roth did not testify or produce a written report. Instead, Dr. Roth's opinions are recited in a medical report prepared by Dr. Healey, who referred to the opinions and examinations of several doctors and that the claimant introduced into evidence. Exhibit 1 at 8. According to the respondents, the reference to Dr. Roth's opinions contained in Dr. Healy's report does not constitute evidence of record. The respondents do not cite any authority for their proposition and we are aware of none. If anything, the lack of a report directly from Dr. Roth may conceivably be relevant when considering the weight to be given to the opinions. Of course, that is a matter for the ALJ. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
The respondents further contend that they were not given the chance to respond to Dr. Roth's opinions or to examine him. However, the respondents did not object to the introduction of Dr. Healey's report, which included a recitation of Dr. Roth's opinions. Tr. (6/1/10) at 7. Furthermore, the respondents do not assert that they were surprised by Dr. Healey's report and it does not appear that the respondents were effectively prevented from compelling Dr. Roth to testify in this matter. We conclude that the ALJ did not err by relying on the references in Dr. Healey's written report regarding Dr. Roth's opinions and that the report constitutes substantial evidence concerning those opinions. Section 8-43-301(8), C.R.S.
III.
The respondents argue that the weight of the evidence shows that the claimant's degenerative problems pre-date the last days of his employment and that the ALJ therefore erred by finding a compensable occupational disease. In support of this contention the respondents refer to portions of the record indicating that the claimant had substantial problems in the past.
Where the claimant suffers an occupational disease and is exposed to the hazards of the disease during successive employments, or where successive insurers provide coverage, liability for the occupational disease is governed by the "last injurious exposure rule." Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo. App. 1995). Section 8-41-304(1), C.R.S., provides that the employer in whose employment the claimant was last injuriously exposed and suffered a substantial, permanent aggravation of the disease is solely liable for all compensation benefits due on account of the disease.
In Monfort, Inc. v. Rangel 867 P.2d 122 (Colo. App. 1993), the court explained that the addition of the phrase "substantial permanent aggravation" to § 8-41-304(1) did not eliminate or change the last injurious exposure test for causation as interpreted in Union Carbide and Royal Globe v. Collins 723 P.2d 731 (Colo. 1986). Rather, the addition of that phrase to the statute imposing liability upon the last employer minimizes the harsh effects of that statute only to the extent that liability now is limited to those employers in whose employ there has been exposure to a harmful concentration of the hazard.
Whether the claimant's employment has caused a substantial permanent aggravation of his condition is a question of fact for the ALJ. Monfort Inc. v. Rangel, supra. Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Monfort Inc. v. Rangel, supra. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence as well as plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Furthermore, where the evidence is subject to conflicting inferences, the issue on review is whether the ALJ's inferences were permissible in light of the totality of the circumstances. Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo. App. 1981). In this regard, we may not interfere with the ALJ's credibility determinations, and her assessment of the sufficiency and probative weight of the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993. In addition, we may not interfere with the ALJ's decision to credit the claimant's testimony insofar as it related to the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
The ALJ credited the claimant's testimony about his symptoms and about his job duties and their effect upon his health. The ALJ also gave weight to the medical opinions of three doctors in addition to those of Dr. Roth. Dr. Yamamoto opined that the claimant had degenerative arthritis of the shoulder that is occupational, but not related to the claimant's previous rotator cuff tear on August 25, 2003. Exhibit I at 73. Dr. Healey opined that the claimant's shoulder problems were from a repetitive motion injury to his shoulders instead of from his right rotator cuff injury on August 25, 2003. He further opined that the claimant's sheet metal work was the primary cause of his bilateral shoulder disability and bilateral carpal tunnel syndrome. Exhibit 1 at 14-16. Dr. Motz noted that even if the claimant had osteoarthritis, his work activity exacerbated, if not completely caused, his bilateral shoulder degeneration. Exhibit 2 at 27. The record supports the ALJ's findings concerning the claimant's occupational disease.
IV.
The respondents contend that the ALJ erred in determining that the claimant was not responsible for his termination from his employment. Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S. contain identical language stating that in cases "where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995) opinion after remand 908 P.2d 1185 (Colo. App. 1985). That determination must be based upon an examination of the totality of circumstances. Id. The burden to show that the claimant was responsible for his discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Metro Moving Storage Co. v. Gussert, supra.
According to the respondents, the claimant was discharged based on a years-long pattern of performance issues. The ALJ found that the employer discharged the claimant for poor work relationships with co-workers and customers. However, the ALJ credited the claimant's testimony that he had good customer relations, but that his job performance worsened because his wrist and shoulder injuries made his work more difficult, especially when he lacked assistance due to staff reductions. Furthermore, the claimant's physical and emotional injuries were found to contribute to his termination. The ALJ was persuaded that the claimant had struggled physically and emotionally and was disturbed because he could no longer perform his job duties. Tr. (6/1/10) at 42-43, 46-48, 60, 64; Tr. (9/13/10) at 71, 73. The ALJ therefore determined that the claimant did not act volitionally in the circumstances that resulted in his termination. Although the respondents refer to evidence that might support a determination that the claimant was at fault for his discharge, the ALJ's findings to the contrary are supported by substantial evidence and binding on review. IT IS THEREFORE ORDERED that the ALJ's order dated November 8, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
TOLIN MECHANICAL SYSTEMS, Attn: MIKE FRANK, DENVER, CO, (Employer).
HARTFORD INSURANCE COMPANY OF THE MIDWEST, Attn: GLENN LEWOCZKO, LEXINGTON, KY, (Insurer).
LAW OFFICE OF STEVEN H. GURWIN, Attn: STEVEN H. GURWIN, ESQ., DENVER, CO, (For Claimant).
BLACKMAN LEVINE, LLC, Attn: TAMA L. LEVINE, ESQ., DENVER, CO, (For Respondents).