Opinion
W.C. No. 4-681-413.
May 23, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated December 9, 2006, that denied and dismissed her claim for benefits. We affirm.
Several of the ALJ's findings are summarized as follows. The claimant sustained a work-related shoulder injury while driving a bus for the employer. Dr. Watson treated the claimant and opined that the claimant's carpal tunnel syndrome was not caused by her work. She subsequently sought benefits for wrist pain, which she alleged was the result of an occupational disease caused by the repetition of pulling an air brake. Dr. Bisgard treated the claimant's right wrist and also stated that the claimant's carpal tunnel syndrome was not work-related. Dr. Hughes performed an independent medical examination and opined that the claimant's carpal tunnel syndrome was related to her work. Medical records differed from the claimant's testimony concerning the physical requirements of her job, the mechanism of injury, and the date of the onset of her symptoms. The ALJ credited the opinions of Dr. Watson and Dr. Bisgard in determining that the claimant's carpal tunnel syndrome was not work-related.
I.
The claimant first argues that the ALJ erred by limiting the testimony of a witness called by the claimant. The witness had previously worked for the employer as a bus driver. Tr. at 24. He described operating the air brake on school buses. Tr. at 25-26. He also testified that operating the brakes aggravated his carpal tunnel condition. Tr. at 27. However, the claimant's counsel asked the witness the following question: "So based on your opinion and your experience as a bus driver is it reasonable that someone would injure their upper extremity using that air brake or using that air brake over time repetitively." Tr. at 27. The employer's counsel objected to the question, asserting that it called for a medical opinion, and the ALJ sustained the objection. The claimant maintains that the witness's opinion was appropriate pursuant to CRE 701 and should have been allowed. We disagree that the ALJ erred by disallowing the claimant's lay witness to testify as to the likelihood of another person being injured by operating an air brake.
C.R.E. 701 permits a lay opinion if the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." An ALJ has wide discretion to determine whether, under this rule, the lay witness is qualified to give an opinion. See Hock v. New York Life Insurance Co., 876 P.2d 1242 (Colo. 1994). As noted by the employer, it is questionable whether a substantial right of the claimant could be affected by precluding the lay witness's testimony regarding the possible connection between operating air brakes and sustaining injuries to a person's upper extremity when a physician had already opined that the claimant's carpal tunnel complaints were related to her work. See CRE 103(a) (error may not be predicated on the exclusion of evidence unless a substantial right of the party is affected); § 8-43-310, C.R.S. 2006 (harmless error standard for review of workers' compensation cases). Nonetheless, assuming, arguendo, that important rights could be affected by the ALJ's evidentiary ruling, we find no reversible error.
A lay witness's opinion must be based on personal knowledge in order to be "rationally based on the perception of the witness." Lombardi v. Graham, 794 P.2d 610, 613 (Colo. 1990). Moreover, the testimony is admissible only if the opinion is not based on specialized knowledge or training calling for an expert opinion, such as whether someone suffered from a specific illness. Dunlap v. People, ___ P.3d ___, No. 04SA218, slip op. at 109-12 (Colo. May 14, 2007).
The claimant refers us to the case of Sandoval v. Birx, 767 P.2d 759 (Colo.App. 1988), in support of his contention that the witness could properly testify as to whether it was reasonable to expect a person operating air brakes on a repetitive basis to injure their upper extremity. In Sandoval, the court determined that an animal control officer should have been allowed to testify to his opinion concerning a dog's disposition based upon his observations of the dog during the month following the dog's attack of a child visiting the home of the defendants. However, the question posed in this case was in the nature of a hypothetical one asking the lay witness to opine as to whether someone other than himself could reasonably be expected to sustain an injury to a specific area of the anatomy by the repetitive use of air brakes. The question essentially sought an opinion on medical causation in a hypothetical context, rather than relying on the witness's personal observations concerning his use of air brakes. We therefore perceive no abuse of discretion in the ALJ's refusal to admit the witness's lay opinion on what amounts to medical causation.
II.
The claimant next contends that she is entitled to a new hearing for several reasons. She argues that a new hearing is warranted due to evidence obtained after the hearing conducted in this matter. In order to warrant a new hearing because of newly discovered evidence it must be shown, among other things, that the new evidence is material and, if received, that it would probably change the result. Kennedy v. Bailey, 169 Colo. 43, 47, 453 P.2d 808, 810 (1969). The relevance of the proffered evidence should not be shown by mere conjecture and speculation. E.M.F. v. N.N., 717 p. 2D 961, 964 (Colo.App. 1985). Furthermore, new evidence that only corroborates, contradicts, or impeaches existing evidence does not warrant a new hearing unless there would be a different result. Therefore, a new hearing should not be based on new evidence that is merely corroborative or cumulative. Phillips v. Monarch Recreation Corp., 668 P.2d 982, 987 (Colo.App. 1983). In addition, a new hearing is not warranted when the new evidence pertains to a theory of the case that a party elected not to pursue for strategic reasons. Aspen Skiing Co. v. Peer, 804 P.2d 166, 173 (Colo. 1991). Because the ALJ's authority was discretionary we may not interfere with the ALJ's refusal to grant a new hearing in the absence of a clear abuse of discretion. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
The claimant argues that a newly discovered MRI report supports the claimant's testimony concerning ongoing pain and, also, "completely undermines" Dr. Watson's opinion as to causation. According to the ALJ's findings, Dr. Watson opined that the claimant's carpal tunnel condition was not related to her work. Order at 3, ¶ 8. To the extent that the MRI evidence is consistent with the claimant's theory of the case, it appears to be, at best, cumulative and perhaps contradictory. Furthermore, the claimant prosecuted this claim based on the theory that her work caused her carpal tunnel condition, rather than on the basis of an alleged shoulder condition. Tr. at 16-17. We therefore find no abuse of discretion in denying a new hearing on the basis of having discovered new evidence.
The claimant also asserts that the arguments of opposing counsel warrant a new hearing. She contends that the employer's counsel persisted in asserting that the claimant was subject to a heightened burden of proving her claim based on the report of a Division-sponsored independent medical examination report concerning another medical condition that was not dispositive of the carpal tunnel claim. The employer subsequently withdrew the argument, but the claimant asserts that the ALJ must have been improperly influenced by the argument. The claimant cites Park Stations, Inc. v. Hamilton, 38 Colo. App. 216, 554 P.2d 311 (1976) in support of her assertion that she is entitled to a new hearing because of the arguments of opposing counsel. In Hamilton, the trial court granted the losing plaintiff in a jury trial a new trial based on the misconduct of defense counsel in the presence of the jury. The Colorado Court of Appeals upheld the trial court's action, noting that a new trial based on the misconduct of counsel serves to prevent a miscarriage of justice. Hamilton, 554 P.2d at 313. A miscarriage of justice may generally be found to occur when the adjudicator makes an error that most assuredly affected the outcome of the case. Robinson v. City and County of Denver, 30 P.3d 677,685 (Colo.App. 2000).
Here, the primary issue for the ALJ to decide was whether the claimant's carpal tunnel syndrome was a compensable occupational disease. The determination of whether there is a sufficient causal relationship between the claimant's employment and the injury or disease is one of fact, which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). However, the statements of the employer's counsel do not constitute evidence in the record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71, 73 (Colo.App. 1987). In any event, it is the ALJ's written findings that are subject to review. Wait v. Jan's Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). It is apparent from the ALJ's order that he applied the proper legal standards in deciding the issue before him. Moreover, this is not a case like Park Stations, Inc., where the danger existed that a jury would be improperly influenced by the arguments of counsel. We perceive no indication of any such improper influencing of the ALJ by the arguments of counsel that were subsequently withdrawn.
The legal standard on review of an alleged abuse of discretion is whether the ALJ's determination "exceeds the bounds of reason," as where it is not supported by the evidence or the applicable law. See 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 arguments of the claimant notwithstanding, we are not persuaded that the ALJ abused his discretion by not granting the claimant a new hearing.
III.
Finally, the claimant challenges both the veracity of a physician found by the ALJ to be credible and the sufficiency of the evidence to support the ALJ's finding that the claimant's carpal tunnel syndrome was not caused by her work.
The claimant had the burden to prove that her alleged disability was proximately caused by an injury or occupational disease arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2006. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
We note that a medical report from Dr. Watson indicates that the claimant has right carpal tunnel syndrome that is not related to an injury concerning pain in her shoulder that apparently began in 2004. Exhibit 6. The ALJ's finding that Dr. Watson opined that the claimant's carpal tunnel condition is not work-related has some basis in the record. In any event, the ALJ's finding that the claimant's carpal tunnel syndrome is not compensable is supported by ample substantial evidence in the record, including the report of Dr. Bisgard. Exhibit D at 16. The assessment of the probative value of conflicting evidence is solely the function of the ALJ, and we may not usurp that role by reweighing the evidence.
IT IS THEREFORE ORDERED that the ALJ's order dated December 9, 2006, is affirmed.
______________________John D. Baird
______________________Curt Kriksciun
Chris Forsyth Esq., Denver CO, (For Claimant)
Clisham, Satriana Biscan, Pat Clisham Esq., Denver, CO (For Respondents)
Douglas County Schools, John Zimmerman, Castle Rock, CO, Helen R. Sullivan, CCMSI, Lakewood, CO.