Opinion
W.C. No. 4-446-550
March 12, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied and dismissed the claim for benefits. The claimant argues the ALJ erred in dismissing the claim at the close of the claimant's case. The claimant further contends the ALJ erred in restricting the opportunity to establish the credentials of a medical expert. We affirm.
The issue in the case was whether the claimant's need for a lumbar fusion at L4-5, which was performed in January 2001, was causally related to his employment at Neighborhood Services, Inc. (NSI), or to the natural progression of a preexisting condition. In this regard, the evidence revealed the claimant sustained a back injury in 1986 while employed by a railroad. This led to a laminectomy at L5-S1, which was performed in 1990.
The claimant was employed by NSI from 1989 through December 1997. The claimant performed various functions including painting, landscaping, mowing, and other janitorial services. The claimant testified that this work activity caused his preexisting back condition to worsen. This testimony was corroborated by Dr. Alarcon, a physician who treated the claimant until 1999.
However, the parties deposed Dr. Danylchuk, the physician who performed the fusion in January 2001. Although Dr. Danylchuk opined the claimant's back condition could have been aggravated by the work at NSI, he also testified the worsened condition could represent the natural progression of the preexisting back condition.
At the close of the claimant's evidence, the respondents moved for judgment on the theory the claim was not filed within the statute of limitations. Although the ALJ rejected the respondents' theory, he determined the claimant's evidence was insufficient to establish a causal relationship between the alleged occupational disease and the claimant's disability and need for treatment. In the written order, the ALJ found the claimant's testimony unpersuasive, and that Dr. Alarcon exhibited bias in favor of the claimant. The ALJ further found that Dr. Danylchuk's opinions are credible, and those opinions establish the claimant failed to meet the burden of proof on causation.
I.
On review, the claimant first contends the ALJ "lacked jurisdiction" to dismiss the claim at the close of the claimant's evidence. Citing C.R.C.P. 41(b)(1), the claimant argues the ALJ should not have dismissed the claim because the respondents did not make a motion to dismiss.
Sections 8-43-207(1)(c), (h) and (i), C.R.S. 2002, give the ALJ authority to make evidentiary rulings, control the course of the proceedings, and enter orders. We may not interfere with this broad authority unless an abuse of discretion is shown. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We have previously concluded that an ALJ's statutory authority extends to the dismissal of a case at the close of the claimant's evidence if the ALJ determines the evidence is insufficient to meet the applicable burden of proof. See Blea v. Deluxe/Current, Inc., W.C. No. 3-940-062 (June 18, 1997). It follows that the ALJ did not lack "jurisdiction" to dismiss the claim.
The rules of civil procedure apply in workers' compensation cases to the extent they are not inconsistent with the Act. Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999). Insofar as C.R.C.P. 41(b)(1) is consistent with the Act and applies here, we conclude there was no error. The claimant's assertion notwithstanding, the respondents did move for judgment at the close of the claimant's case. Admittedly, the ALJ granted the motion based on the causation issue rather than the statute of limitations issue raised by the respondents. However, we perceive no error since the claimant was afforded a full opportunity to present her case before the ALJ entered the order in favor of the respondents.
II.
The claimant next contends the ALJ applied an erroneous standard when evaluating the evidence. The claimants asserts the ALJ should have viewed the evidence in a light most favorable to the claimant and denied the motion to dismiss if any of the evidence presented could have supported an award. Alternatively, the claimant argues the evidence compelled the ALJ to find the disability and need for treatment was caused by the occupational disease which he allegedly incurred while employed by NSI. We disagree with these arguments.
Where the case is tried to a judge and the respondents make a motion for dismissal at the close of the claimant's case the issue is not whether the claimant presented a prima facie case of compensability. Rather, the issue is whether in light of all the evidence judgment should be entered for the respondents. See Smith v. Weindrop, 833 P.2d 856 (Colo.App. 1992); Mobley v. King Soopers, W.C. No. 4-359-644 (March 18, 2002), aff'd. Mobley v. Industrial Claim Appeals Office, (Colo.App. No. 02CA0671, February 13, 2003) (not selected for publication). It follows the ALJ properly evaluated the weight of the evidence when finding the claimant failed to present sufficient persuasive evidence to meet the burden of proof.
We reject the claimant's contention that "overwhelming evidence" compelled the ALJ to find the claimant's employment with NSI aggravated the preexisting back problems. The determination of whether the claimant's disability and need for treatment was proximately caused by an injury arising out of and in the course of employment was one of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Further, an injury is compensable if it aggravates, accelerates, or combines with a preexisting condition so as to cause the need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Because the issue of causation is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). To the extent a medical expert's opinion is subject to conflicting interpretations, it is for the ALJ to resolve the inconsistency by crediting some or none of the expert's opinion. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
The claimant's assertions notwithstanding, the ALJ reasonably characterized Dr. Danylchuk's testimony as being equivocal on the issue of whether the claimant's work at NSI caused an aggravation of the back condition, or whether there was a natural progression of the railroad injury. For instance, Dr. Danylchuk testified, "with that type activity, I believe, you know, can contribute to significant further problems." Later, Dr. Danylchuk testified that it was a "possibility" that there was a natural progression of the preexisting back condition and that moderate activity could "potentially precipitate a worsening." (Danylchuk Depo. Pp. 8, 27). Because the ALJ found Dr. Danylchuk's testimony persuasive, he reasonably concluded the claimant failed to meet the burden of proof to demonstrate the disability and need for treatment were caused by the activities of employment. The fact other interpretations of the evidence were possible affords no basis for relief on appeal.
III.
The claimant next contends the ALJ erred by limiting the claimant's opportunity to establish Dr. Alarcon's credentials as an expert witness. The basis for this assertion is the ALJ's interruption of questioning when claimant's counsel asked Dr. Alarcon whether he received any awards while stationed in Iraq and Kuwait. We find no error.
The ALJ is granted broad discretion in determining whether a witness is qualified to testify as an expert. See People v. Williams, 790 P.2d 796 (Colo. 1990). Here, the ALJ permitted claimant's counsel to establish an extensive record concerning Dr. Alarcon's training and experience as a physician, including his experience as a military doctor. Thus, the ALJ allowed the claimant to develop an ample foundation to permit Dr. Alarcon to testify as an expert witness. We perceive no abuse of discretion in the ALJ's decision to limit the questioning when it strayed to the peripheral issue of Dr. Alarcon's military decorations. See § 8-43-207(1)(d), C.R.S. 2002 (ALJ may limit or exclude repetitive proof or examination).
Claimant's counsel also argues the ALJ should have permitted the inquiry because counsel anticipated an attack on Dr. Alarcon's credibility during cross-examination. However, the ALJ ruled that an "anticipatory strike" would not be permitted.
Finally, we note that claimant's counsel made no offer of proof concerning the nature of Dr. Alarcon's military awards. Consequently, it is impossible to determine whether the awards are even relevant to the issue of Dr. Alarcon's credibility. Because there was no offer of proof, the claimant may not now predicate error on the ALJ's refusal to permit the question. C.R.E. 103 (a)(2). In any event, the ALJ correctly ruled that during direct examination parties are not permitted to introduce evidence of specific instances of conduct for the purpose of bolstering the credibility of a witness. C.R.E. 608(b).
IT IS THEREFORE ORDERED that the ALJ's order dated October 15, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 12, 2003 to the following parties:
Louis Magana, P. O. Box 3527, Pueblo, CO 81005
Patty Tapia, Neighborhood Services, Inc., 3937 Ivywood Ln., Pueblo, CO 81005
Legal Department, Pinnacol Assurance — Interagency Mail Francis K. Culkin, Esq., 1120 Lincoln St., #711, Denver, CO 80203 (For Claimant)
Stacy J. Tarler, Esq., 1720 S. Bellaire St., #310, Denver, CO 80222-4316 (For Respondents)
By: A. Hurtado