Opinion
W.C. No. 4-714-372.
January 11, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated July 23, 2007 that denied and dismissed the claim for compensation. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant began employment for the employer in January 2005. The claimant acted as a receptionist, greeting customers, answering the telephone, filing, photocopying, and using the computer for various tasks. The claimant also served as an interpreter for the hearing-impaired. The claimant's job duties did not involve vibration or forceful gripping, nor did she type from dictation. The claimant's typing was interspersed with other job activities. On August 2, 2006 the claimant informed the employer that she was seeking medical care from her personal physician due to arm symptoms and that typing aggravated her wrist. Her personal physician referred her to Dr. Wolf who provided a history of insidious onset of right wrist pain and the onset of numbness while cutting her husband's hair. On August 23, 2006 the claimant wrote to the employer and indicated that the treatment by Dr. Wolf should resolve the carpal tunnel syndrome (CTS) and indicated that she had resigned her job. On August 31, 2006 the claimant fell at her home and her husband attempted to carry her but fell on her, causing a right wrist fracture. In December 2006 the claimant contacted the employer and indicated that she wanted to file a workers' compensation claim. The employer referred the claimant for an evaluation by Dr. Roth. Dr. Roth expressed the opinion that the claim's conditions were not work-related.
The ALJ found that the claimant did not suffer an occupational disease to her bilateral upper extremities resulting directly from the employment or conditions under which work was performed and following as a natural incident of the work. The ALJ found that the claimant's job duties were varied. The ALJ determined that the claimant's duties did not involve the necessary rate, force, repetition, and cycle time risk required for the development of CTS. The ALJ found that the claimant had falls at home, which directly led to her continued symptoms. Therefore, the ALJ denied and dismissed the claimant's claim for compensation and benefits.
On appeal, the claimant contends that the ALJ erred in permitting Dr. Roth to testify as to his opinion that the claimant's job did not present a rate, force, repetition, and cycle time sufficient for development of carpal tunnel syndrome. The claimant argues that Dr. Roth was only accepted as an expert in occupational medicine but not as an expert in accident reconstruction, engineering, or biomechanics. The claimant argues that Dr. Roth had no basis upon which to render the opinions that the ALJ relied upon.
Here the claimant agreed that Dr. Roth was an expert in occupational medicine and could testify regarding medical opinions. Tr. 11,12. However, the claimant objected to the admission of Dr. Roth's report at the inception of the hearing, arguing that it had insufficient foundation because the doctor lacked expertise to render a biomechanical opinion. Tr. 10-13. The claimant maintained that the report from Dr. Roth was only "partially admissible" because it contained opinions regarding the biomechanics that caused CTS. The ALJ accepted the report into evidence generally citing § 8-43-210 C.R.S. 2007, which provides that medical reports are admissible as evidence and can be filed without formal identification. The ALJ also accepted the respondents' contention that the issue raised by the claimant went to the weight to be given Dr. Roth's opinions and not to the admissibility of the report.
Dr. Roth testified at the hearing. During his testimony he again expressed opinions on cause of the claimant's condition. Dr. Roth testified without objection from the claimant on causation. Dr. Roth diagnosed right CTS, early left CTS, bilateral lateral epicondylitis, and right cubital tunnel syndrome. Exhibit A at 5. Dr. Roth concluded that none of the claimant's conditions was work-related. Tr. 154. Dr. Roth testified that the claimant's job activities did not involve sufficient rate, force, repetition, and cycle time to create a risk for CTS. Tr. 159-161, 166-67. Instead, he opined that CTS is an anatomy-based phenomenon that correlates with age. Dr. Roth explained that the key to work causation or aggravation of CTS is a monotonous single upper extremity activity for hours at one time. Tr. at 159-60; Exhibit A at 5. Dr. Roth testified that after considering the details of her work activities there was nothing that would be causal or additive, or accelerate or change the natural course of her carpal tunnel disorder. Tr. 160. Dr. Roth on cross examination explained that the basis of his opinion that the there was insufficient force to cause carpal tunnel in the claimant's case was in part based on twenty years of experience in evaluating different occupations and job site reviews. Tr. 180. The ALJ found the expert opinions of Dr. Roth were credible and persuasive.
We agree with the ALJ that the claimant's arguments go to the weight of the opinions of Dr. Roth should be given rather than to whether the opinions were admissible. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). We note that the claimant also relied upon the opinion of a physician in an attempt to establish a causal connection between the claimant's work and her work. Where, as here, medical experts proffer opinions based on their experience and knowledge, the ALJ must determine whether the experts possess specialized information which will assist him in resolving a relevant issue. CRE 702; Brooks v. People, 975 P.2d 1105 (Colo. 1999).
Dr. Roth relied in part upon the Medical Treatment Guidelines for Cumulative Trauma Disorder and CTS developed by the Division of Workers' Compensation. Rule 17 Exhibit 2, Exhibit 5. 7 CCR 1101-3 at 147-82 and 263-300; Tr. at 153, 155,161,171. As noted by the court of appeals the Division's 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 aid 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). Dr. Roth also testified that he relied on certain studies that disclosed that slowing of the speed of nerve conduction was correlated both with "time" and with genetic predispositions, but not with other causative factors. Tr. 166-65. We note that the claimant did not contemporaneously challenge the validity of these studies.
As we understand the claimant's argument on appeal, she contends in part that Dr. Roth's opinions constituted the sort of "novel" expert testimony that should have been ruled inadmissible as insufficiently reliable. See People v. Shreck, 22 P.3d 68 (Colo. 2001); People v. Ramirez, 155 P.3d 371(Colo. 2007) (discussing threshold standards of admissibility of expert evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and CRE 702 and concluding that the Colorado rules of evidence provide the standard for admissibility of expert evidence). However, in our view the opinions of Dr. Roth are not predicated on the type of novel scientific evidence which formerly required the application of the Frye or Daubert tests. Brooks v. People, supra. In any event, it is presently well-established that the admissibility of expert evidence is governed by the rules of evidence rather than by Frye or Daubert and we perceive no error in this respect. People v. Shreck, supra.; People v. Ramirez, supra.
The claimant's reliance upon Schultz v. Wells, 13 P.3d 846, 852 (Colo.App. 2000) as authority for compensability in this instance is misplaced. Schultz stands for the proposition that a trial court has broad discretion to determine the probative value and prejudicial impact of evidence and to determine whether evidence should be excluded because it would confuse the issues or mislead the jury. In Schultz, tests used to ascertain safety for the purposes of doing a cost-benefit analysis with regard to the expense of designing the seat of a car were found not applicable to prove that a particular person was unlikely to be injured in a specific accident. The court assessed the usefulness of presenting a probability theory to the jury, and concluded that such testimony would be confusing and misleading to the jury. The court of appeals concluded that the trial court properly analyzed the expert scientific evidence at issue for its potential to aid the jury and used appropriate factors to review the validity of the scientific principles and the likelihood that the evidence may mislead the jury.
Here, of course, the fact finder was an ALJ and not a jury, and he credited the opinions of Dr. Roth as persuasive. We may not interfere with the ALJ's determination that expert testimony should be admitted unless it constitutes a clear abuse of discretion. Hall v. Home Furniture Co. 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is not supported by the record or applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Moreover, because the fact finder has a "superior opportunity" to assess the competence of the expert and usefulness of the opinions, the standard of review is "highly deferential." Ramirez, 155 P.3d at 380. We perceive no abuse of discretion in the ALJ's admission and reliance upon the opinions of Dr. Roth.
The claimant also argues that Dr. Roth expressed no opinion on whether the bilateral epicondylitis and the cubital tunnel syndrome were related to the claimant's work. We disagree. In his report, Dr. Roth's assessment of the claimant included right carpal tunnel syndrome, probably early symptoms left carpal tunnel syndrome, left lateral epicondylitis, right lateral epicondylitis and right cubital tunnel syndrome. Dr. Roth stated it was his opinion that the claimant's difficulties were independent and unrelated to her work activities. Exhibit A at 5. At the hearing Dr. Roth testified that the claimant did not have any injury or occupational disease arising from her work duties at the employer. Tr. at 154 173.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
VALERIE HERNANDEZ, AURORA, CO, (Claimant).
UNIVERSITY OF COLORADO HOSPITAL, Attn: CANDICE SPEARING, DENVER, CO, (Employer).
ARGONAUT INSURANCE, Attn: MARY GILMORE, SCOTTSDALE, AZ, (Insurer).
ALEXANDER RICCI, P.C., Attn: WILLIAM A. ALEXANDER, JR., ESQ., COLO SPGS, CO, (For Claimant).
RITSEMA LYON, Attn: JOEL M. POLLACK, ESQ., DENVER, CO, (For Respondents).