Opinion
W.C. No. 4-694-053.
October 16, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 20, 2008, that denied and dismissed her claim for benefits. We affirm.
This matter proceeded to hearing to determine whether the claimant had sustained a compensable injury. The ALJ's findings of fact addressed the circumstances surrounding the alleged mechanism of the claimant's injury: a fall off a chair while in the company break room on June 28, 2006. The ALJ's findings are summarized as follows. The claimant testified that she injured her neck after falling backward in a chair in the break room and striking her head and neck on the tile floor. Another employee testified that he was in the break room at the time of the incident. He heard a slapping sound in the claimant's direction and turned to look just a "split second" after hearing the sound. He denied that the claimant was lying on the floor. Instead, the employee saw the claimant on one knee next to the chair and exclaiming into her cell phone "Look what you made me do!" He saw the claimant kneel to lift the chair while holding the phone to her ear. The employee said that the claimant appeared uninjured and sat back in the chair after righting it. The ALJ credited the employee's account of the incident and found the claimant's description of the incident to be incredible.
The claimant's supervisor asked her to recreate the incident. The claimant described how the chair's glides caught on a transition strip in the flooring, causing the chair to fall backwards. However, the supervisor was not able to recreate the incident as described by the claimant. The ALJ credited the supervisor's testimony that he could not make the chair fall over as described by the claimant. The supervisor's assistant sat in the chair and asked the claimant to help her recreate the incident. The assistant could not get the chair to tip without pushing off from a table with her feet. In her experience, the assistant did not find the chair to be the type to tip over backward. The ALJ credited the assistant's testimony about not being able to recreate the incident as described by the claimant.
An adjuster testified that the claimant told her at different times that her neck complaints might be from a prior injury sustained in a motor vehicle accident. The adjustor had to resend medical releases to the claimant several times before the claimant finally executed and returned them. The ALJ found the adjustor's testimony to be credible.
Dr. Rafferty evaluated the claimant after she reported an injury. He diagnosed presumptive strains of the cervical and thoracic spinal regions. Dr. Orent later acted as the claimant's treating physician. The ALJ credited the medical opinions of Dr. Brodie. Dr. Brodie was familiar with the claimant's medical treatment prior to the alleged fall at work. He conducted an independent medical examination of the claimant and later testified that the claimant's head and neck symptoms were substantially the same both before and after June 28, 2006.
The ALJ considered the claimant's testimony to be untruthful and resolved conflicts between her testimony and that of other witnesses against the claimant. The ALJ was not persuaded that the claimant sustained a compensable injury and denied and dismissed her claim for benefits.
I.
The claimant asserts that the determination of her treating physician that the claimant sustained a work injury is binding on the parties. The claimant argues that the ALJ therefore lacked jurisdiction to determine compensability without the respondents first obtaining a Division-sponsored independent medical examination (DIME) to challenge the finding of MMI and impairment rating by Dr. Orent, a treating physician. In this case, the respondents obtained an order from a prehearing ALJ that "extended until thirty . . . days following a final adjudication or admission that this case is compensable" their "duty to react to Dr. Orent's August 1, 2007 rating, by either admitting for it or initiating the Division IME process. . . ." Exhibit 12. The matter proceeded to hearing on the issue of compensability. Nonetheless, the claimant asserts that the statutory provisions governing the selection of a DIME physician make Dr. Orent's findings, including his opinion that the claimant suffered a work injury, binding on the parties. See § 8-42-107.2(2)(b), C.R.S. 2008 (authorized treating physician's findings and determinations binding absent timely notice and proposal regarding DIME physician selection). We disagree. Section 8-42-107(8), C.R.S. 2008, provides for the selection of a DIME physician in order to dispute the authorized treating physician's determination concerning either maximum medical improvement or a medical impairment rating. The failure to do so in a timely manner result in the treating physician's findings and determinations becoming binding under § 8-42-107.2(2)(b), C.R.S. 2008.
In contrast, the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that the ALJ must determine, if contested, under the preponderance of the evidence standard. Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo.App. 2001). In this case the compensability of the claimant's injuries was at issue. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000) (litigated issue of injury's causation not subject to elevated burden of proof governing challenges to DIME). The respondents had filed a notice of contest and both parties listed compensability as an issue for resolution at the scheduled hearing. Exhibit B. Consequently, we are not persuaded that absent a DIME the ALJ was without jurisdiction to determine the compensability of the incident on June 28, 2006. See Sandoval v. Cargill Meat Solutions, W.C. No. 4-710-666 (January 31, 2008) (rejecting argument that treating physician's finding of causation was binding absent a DIME).
In the alternative, the claimant requests that this matter be remanded to allow her the opportunity to seek a DIME. However, as noted above, the ALJ's determination that the claimant did not sustain a compensable injury in the first instance obviates the need to examine the treating physician's finding of either maximum medical improvement or medical impairment. Moreover, requests for a DIME to challenge the authorized treating physician's determination, the impairment rating, or both, must be made in accordance with the procedures established in § 8-42-107.2, C.R.S. 2008, including time limitations that appear to have passed. Section 8-42-107(8)(b)(II), (c), C.R.S. 2008; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 190 (Colo.App. 2002). To the extent that the claimant asserts violations of constitutional protections due to the present posture of her claim, we generally lack jurisdiction to address constitutional challenges to the Workers' Compensation Act. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Therefore, we do not consider the claimant's constitutional arguments.
II.
The claimant also challenges various evidentiary rulings by the ALJ. 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. 2008; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The claimant contends that the ALJ erred by admitting police reports into evidence. We note that, contrary to the claimant's assertions, the reports were certified. Exhibits J and K; Tr. at 7. The claimant also objected to the reports on the basis of hearsay. Tr. at 7. See CRE 801(c) ("hearsay" is defined as a statement other than one made by the declarant at the hearing, offered in evidence to prove the truth of the matter asserted). The police reports contained statements alleged to have been made by the claimant. As noted by the claimant, the business records exception to the hearsay rule does not include third party statements in a police report. See, e.g., United States v. Snyder, 787 F.2d 1429, 1433-34 (10th . Cir. 1986); Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612, 617 (Colo.App. 2003); see also, Schnabel v. Waters, 37 Colo. App. 498, 503, 549 P.2d 795, 800 (1976) (alleged statement by plaintiff in accident report inadmissible when officer creating report does not appear to have personal knowledge of plaintiff making such statement). Furthermore, it does not appear that the ALJ accepted the police reports into evidence on the basis that they constituted an exception to hearsay under the business records exception. See CRE 803(6) (excluding records of regularly conducted activity from hearsay); see also, Lannon v. Taco Bell, Inc., 708 P.2d 1370, 1374 (Colo.App. 1985) (construing police offense reports as admissible under CRE 803(6)).
Instead, the ALJ accepted the police reports into evidence on the basis that the claimant's reported statements were prior inconsistent statements, which would, of course, go to the issue of the claimant's credibility. Order Rega[r]ding Evidentiary Issues at 3 (unpaginated). See CRE 801(d)(a)(A) (statement not hearsay if declarant testifies subject to cross-examination and statement is inconsistent with testimony). We conclude that the ALJ erred in accepting the police reports into evidence on that basis alone. Schnabel v. Waters, supra. However, the ALJ's Findings of Fact, Conclusions of Law, and Order does not refer to either the police reports or the claimant's alleged corresponding statements. The order discusses credibility determinations concerning the claimant in the context of her statements and conduct regarding medical providers and other witnesses at the hearing. Findings of Fact, Conclusions of Law, and Order at 7, ¶ 19. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385, 389 (Colo.App. 2000) (evidence not cited in order implicitly rejected as unpersuasive). We therefore consider the ALJ's evidentiary error to be harmless. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
The claimant also asserts that she was surprised by a witness's testimony concerning her alleged fall at work. The claimant called her supervisor as a witness. Tr. at 37. The supervisor testified about what the claimant told him concerning her alleged fall. Tr. at 40-41. He went on to describe trying to recreate the incident. Tr. at 41-43. The claimant did not object to that testimony. The supervisor later gave additional testimony concerning the alleged fall and his investigation of the incident again without any objection by the claimant. Tr. at 48-49. However, the supervisor was later called by the respondents and the claimant objected to questioning regarding his testimony pertaining to mechanism of the claimant's alleged fall using a chair as demonstrative evidence. It also appears that the claimant indicated that she was not provided through discovery a completed description of the supervisor's anticipated testimony. Tr. at 147. At the close of the hearing the parties discussed post-hearing depositions. The claimant identified only Dr. Orent as a potential rebuttal witness. Tr. at 181, 183.
It appears from the record that the claimant filed after the hearing written objections to various testimony and documentation. In her "Opposed Motion Re: Rebuttal and Argument Re: Evidentiary Issues, the claimant asserted that she was surprised by her supervisor's testimony to the effect that her fall did not occur and, therefore, needed to call Shane Eller as a rebuttal witness to testify that "the floor of the lunch room where the fall occurred is not level, increasing the likelihood of a fall." Claimant's Opposed Motion at 2, ¶¶ 7-8. The ALJ denied the claimant's request to take the testimony of Shane Eller as a rebuttal witness because the lay evidence was closed after rebuttal and surrebuttal testimony and calling additional lay evidence would be untimely and prejudicial. Order Regarding Rebuttal Evidence at 1 (unpaginated). The respondent asserted that the claimant would have an unfair advantage if Shane Eller's testimony was permitted. It also maintained that its position was not that the claimant's fall did not occur. Instead, it asserted that the fall did not occur as testified to by the claimant. Moreover, the respondent asserted that it advised the claimant in discovery that the supervisor would testify regarding the claimant's reporting and demonstration of the incident. Respondent's Objection to Claimant's Motion Re: Rebuttal and Argument Re: Evidentiary Issues at 2-3, ¶¶ 6-7.
The claimant asserts that she was entitled to call Mr. Shane Eller as a rebuttal witness as an unconditional right under the circumstances. We disagree and conclude that the ALJ acted within his discretion in denying the post-hearing rebuttal testimony of a lay witness. Cf. Rice v. Department of Corrections, 950 P.2d 676, 681 (Colo.App. 1997) ("The admission of rebuttal testimony is within the sound discretion of the ALJ and will not be disturbed absent an abuse of that discretion.") Consistent with its post-hearing response to the claimant's request to present the testimony of Mr. Shane Eller, the respondent asserted at the hearing that the claimant misstated what happened regarding falling from a chair at work and, also, that the claimant was not injured in the incident. Tr. at 17. Under the circumstances, we discern no abuse of discretion by the ALJ in denying the claimant's post-hearing request to call additional lay witnesses.
IT IS THEREFORE ORDERED that the ALJ's order dated June 20, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
MICHELLE ELLER, P O BOX 192, ERIE, CO, (Claimant)
BOULDER VALLEY SCHOOL DISTRICT, Attn: BETH COLLINS/BOB JAMIESON, BOULDER, CO, (Employer)
CHRIS FORSYTH LAW OFFICE LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant)
RITSEMA LYON, PC, Attn: FRED RITSEMA, ESQ./KELLIE BURDICK, ESQ., DENVER, CO, (For Respondents)
CCMSI, Attn: PAULA LOWDER, CO, (Other Party)