Opinion
W.C. Nos. 4-739-052 4-740-891.
October 26, 2009.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Henk (ALJ) dated May 26, 2009, that denied the claimant's claim for workers' compensation benefits. We affirm.
At hearing, the claimant contended he suffered a compensable injury to his neck on April 18, 2006 when he was struck in the head by a roof hatch. (W.C. No. 4-739-052). The claimant also contended that he sustained a compensable occupational disease to his lumbar spine with onset on or about August 22, 2006. (W.C. No. 4-740-891). The ALJ found that the claimant failed to sustain his burden of proof to demonstrate by a preponderance of the evidence that he sustained a compensable injury to his cervical spine on April 18, 2006. The ALJ also found that the claimant failed to sustain his burden of proof to demonstrate by a preponderance of the evidence that his work activities caused, aggravated, or accelerated the pre-existing condition of the claimant's lumbar spine so as to create an occupational disease. The claimant brings this appeal raising numerous issues of alleged error by the ALJ.
Initially, we reject the claimant's contentions that are not matters of record, such as the new medical report from Dr. Judd dated August 3, 2009 and other attachments to the claimant's brief. Our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988).
I.
The claimant contends that the ALJ erred in excluding evidence regarding alleged bias and credibility of Dr. Roth. The claimant argues that the claimed errors by the ALJ require the matter to be remanded or reversed because she decided the case based upon Dr. Roth's "credibility." We disagree.
This argument appears to be directed towards determinations made by the ALJ in her original order. However, in the supplemental order here under review the ALJ found that even if she had accepted the claimant's assertions that Dr. Roth was biased it was the claimant's lack of credibility, claimant's conflicting testimony with the employer's testimony and the fact that the claimant did not report a work-related injury or industrial cause when he first sought medical treatment with Dr. Judd, as well as his long-standing history of cervical and lumbar spine complaints, that led to the determination that the claimant failed to prove his workers' compensation claims. Finding of Fact § 19 at 5.
We look to the ALJ's findings in her supplemental order to determine whether the findings of fact are supported by the record. Cates v. Hyatt Corporation, W.C. No. 4-703-696 (March 13, 2008). Supplemental orders are reviewable by the panel, including the findings of fact contained in the supplemental order. Section 8-43-301(6), C.R.S. 2009; see also Gaskins v. Golden Automotive Group, LLC, W.C. No. 4-374-591 (August 6, 1999) (findings of fact contained in supplemental order control over findings in summary order).
The ALJ made the following findings of fact with record support in her supplemental order. The claimant had a longstanding history of cervical and lumbar spine issues dating back to an automobile accident in 1978. Tr. (5/29/2008) at 54-55; Exhibits B, C, D, E, I, L at 79, O. On June 10, 1991, the claimant suffered a prior workers' compensation injury that resulted in lumbar surgery. Tr. (5/29/2008) at 60. The claimant began employment with the employer on January 5, 2006 as a delivery driver. Tr. (5/29/2008) at 108. The claimant did not have any problems with his back while working for the employer between January 2006 and April 2006. Tr. (5/29/2008) at 126-27. On or about April 3, 2006 the claimant called in to work due to an incident involving lifting a carpet cleaner at his house. Tr. (5/29/2008) at 112; Exhibit Q. The claimant reported to the president of the employer that he had injured his back while lifting the carpet cleaner at home. Tr. (5/29/2008) at 121. While noting conflicting evidence regarding the date of the carpet-cleaning incident, the ALJ found the testimony of the president that the claimant had not reported difficulties with his back prior to the carpet cleaner incident to be credible and persuasive. Tr. (5/29/2008) at 114-15. After the carpet-cleaner incident, the claimant complained of difficulty with his back and his employer modified his job duties and hired an assistant to take over any lifting that needed to be performed. Tr. (5/29/2008) at 114-15.
The claimant testified at hearing that he was struck in the head by a roof hatch on April 18, 2006. However, inspection of the claimant's daily logs, which were accepted into evidence, did not show any reference to an injury having occurred on that date or that the claimant was at the location where he alleged the injury occurred on the date in question. Exhibit 12 at 53. Tr. (5/29/2008) at 73-75. The president testified credibly and persuasively that the claimant never reported the April 18, 2006 alleged incident to him. Tr. (5/29/2008) at 121-22. The president testified credibly and persuasively that the claimant did not report any work-related injury or request medical treatment prior to voluntarily terminating his employment with the employer in August 2006. Tr. (5/29/2008) at 121-22; Exhibit P. The employer testified that at the time the claimant quit his employment, he appeared fine and was not demonstrating any signs or symptoms of back pain. Tr. (5/29/2008) at 124-27. Both claims for workers' compensation benefits were filed over one year after the claimant left his employment with the employer. Tr. (5/29/2008) at 89.
On November 9, 2006, the claimant was treated by his family physician Dr. Judd. Dr. Judd's report indicated that the claimant was "here for evaluation and management of his chronic neck pain." Exhibit N. There is no mention in Dr. Judd's report of the alleged incident with the roof hatch, nor is there mention of any low back pain complaints. Exhibit N.
On May 11, 2007 Dr. Bryniarski diagnosed the claimant with degenerative disc disease and opined that it was secondary to the long-term effect from the 1991 injury, overall degenerative disease of the spine and a long-term smoking history. Exhibit C at 2. On November 12, 2008, Dr. Wunder, in connection with an application for Social Security disability benefits, noted inconsistencies in the claimant's presentation and stated that the claimant's complaints "could not be taken at face value." Exhibit B at 5.
In our view there is, independent of the opinions of Dr. Roth, substantial evidence supporting the ALJ's conclusion that the persuasive evidence did not support a determination that the April 18, 2006 alleged incident with the roof hatch occurred or if it did occur, that it did not cause disability or the need for medical treatment. We also view the record, again independent of the opinions of Dr. Roth, as containing substantial evidence supporting the ALJ's conclusion that the claimant failed to sustain his burden of proof to demonstrate by a preponderance of the evidence that his work activities caused, aggravated, or accelerated the pre-existing condition of the claimant's lumbar spine so as to create an occupational disease. Therefore, even if evidence of Dr. Roth's alleged bias was erroneously excluded the claimant's substantial rights were not affected. See § 8-43-310, C.R.S. 2009 (harmless error is to be disregarded); Bodensieck v. Industrial Claim Appeals Office 183 P.3d 684 (Colo. App. 2008).
II.
The claimant contends that the ALJ erred in admitting evidence contained in Dr. Roth's written report pursuant to CRE 801 and CRE 403 and for lack of foundation. We note again that it was the claimant's lack of credibility, the conflicting testimony of the employer and medical records other than Dr. Roth's that led the ALJ to her determination that the claimant had failed to prove his workers' compensation claims. Further, again in our opinion, independent of the opinions of Dr. Roth, substantial evidence exists in the record to support the ALJ's conclusion that the claimant failed to carry his burden of proof regarding his claims. Therefore, even if there was error committed in admitting evidence contained in Dr. Roth's written report the claimant's substantial rights were not affected. See Id.
III.
The claimant contends that the ALJ erred in admitting medical journal articles pursuant to CRE 803(18). The objection made to the introduction into evidence of the articles was essentially on the general ground of hearsay although the grounds of relevance and foundation were also mentioned. Tr. (10/9/2008) at 83-84.
CRE 803 concerns certain exclusions to the hearsay rule. CRE 803 (18) defines learned treatises as follows:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence and may be received as exhibits, as the court permits.
The two medical journal articles were identified by a physician at the hearing as an epidemiologic study addressing factors associated with disc degeneration and an article addressing the influence of occupational factors in lumbar degeneration. Tr. (10/9/2008) at 79-81. The articles were publications from Spine, which was described by the physician as the current preeminent journal of the North American Spine Society. Tr. (10/9/2008) at 79.
The claimant, citing Wall v. Weaver, 145 Colo. 337, 358 P.2d 1009 (Colo. 1961), argues that the ALJ must give the opponent the opportunity to review and voir dire the exhibit. Claimant's reliance upon Wall v. Weaver is misplaced. We first note that here the claimant did not ask for the opportunity to review or voir dire the exhibits. We next note that in Wall v. Weaver the article had not been relied upon by the medical expert and was in fact repudiated by him because it was "sheer nonsense," which is not the case here.
Under section 8-43-207(1), C.R.S. 2009, "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 Eller v. Indus. Claim Appeals Office, ___ P.3d ___, ___ (Colo. App. No. 08CA2274, Sept. 3, 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.").
Here, the physician testified before the ALJ as an expert in internal medicine. Tr. (10/9/2008) at 4. We perceive no abuse of discretion by the ALJ allowing into evidence articles identified as taken from a preeminent medical journal and relied upon by the physician testifying before the ALJ, over an objection of hearsay.
IV.
The claimant contends that the ALJ erred in determining that the claimant did not sustain a compensable injury. The claimant argues that the ALJ erred in reaching her determination that the claimant's injuries were not compensable based upon the causation testimony of Dr. Roth. This appears to be directed towards the original order issued by the ALJ. However, as noted above, in her supplemental order the ALJ made it clear that even if she ignored the testimony of Dr. Roth it was the claimant's lack of credibility, conflicting employer's testimony and other evidence that led to her determination that the claimant failed to prove his workers' compensation claims. Again, we look to the ALJ's findings in her supplemental order to determine whether the findings of fact are supported by the record.
Proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. Section 8-43-201, C.R.S. 2009; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant has proven a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2009. The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and that we defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, supra. Here, as noted above, there was ample evidence in the record to support the ALJ's factual determinations. Therefore, we perceive no reason to interfere with the order.
V.
The claimant contends that the ALJ erred in finding that the claimant did not report restrictions to the employer. The ALJ found that the claimant did not report any permanent work restrictions on his job application or indicate that he would have any difficulty in performing the delivery driver position. Findings of Fact § 1.
The claimant introduced into evidence a copy of his job application. Tr. (May 29, 2008) at 14; Exhibit 13. The claimant on appeal maintains that there are pages of the application missing and as we understand his argument, he now contends that the ALJ erred in relying on the exhibit he introduced into evidence. The claimant has not cited any authority that this constitutes error nor are we aware of any such authority.
We further note that the employer testified that although the claimant had acknowledged a prior back surgery there were no notations of a 25-pound lifting restriction at the time of hire. Tr. (5/29/2008) at 110. In our view, this is constitutes substantial evidence to support the ALJ's findings and therefore we are bound by such determination. Section 8-43-301, (8).
VI.
The claimant next contends that the ALJ erred in her findings concerning the claimant's report of injury due to an incident involving lifting a carpet cleaner at his house. However, as noted above in our view there is substantial evidence supporting such a finding. Tr. (5/29/2008) at 112, 121; Exhibit Q. The ALJ acknowledged conflicting evidence on this issue.
However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
VII.
The claimant next contends that the ALJ erred in finding in favor of the employer's testimony rather that relying on details alleged to be contained in the claimant's daily logs, which would demonstrate the job required lifting of more than 25 pounds. However, "we may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it." Arenas v. Industrial Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Here, the ALJ found that the employer's testimony was credible and we cannot say as a matter of law that this determination must be overturned.
Nor can we grant the claimant's request at this time that the ALJ now issue subpoenas for the appearance of other employees to appear and testify along with other documents and photos. Parties are expected to produce their evidence at the appointed hearing, and the failure to produce evidence does not warrant an additional hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935).
VIII.
The claimant argues that the Social Security Administration declared him to be disabled. However, a social security decision is not binding in the workers' compensation proceeding. Lindner Chevrolet v. Industrial Claim Appeals Office 914 P.2d 496 (Colo. App. 1995), rev'd in part on other grounds by Askew v. Industrial Claim Appeals office, 927 P.2d 1333 (Colo. 1996).
The claimant makes further contentions that the ALJ erred in accepting the employer's testimony and other evidence offered by the employer as credible and persuasive. The claimant's arguments essentially request that we reweigh the evidence on review. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and we decline the claimant's invitation to do so. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). We have reviewed the claimant's additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated May 26, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________ John D. Baird
____________________________ Thomas Schrant
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VINCENT A MORSICATO, 3840 S HELENA ST, AURORA, CO, 80013 (Claimant)
ALLIANCE ROOFING, INC., Attn: KEVIN PITTS, C/O: RESOURCE MANAGEMENT SYSTEMS INC, 7447 EAST BERRY AVE, SUITE 200, GREENWOOD VILLAGE, CO, 80111 (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., 7501 E LOWRY BLVD, DENVER, CO, 80230 (Insurer)
ELEY, GALLOWAY TRIGG, LLP, Attn: DANIEL GALLOWAY, ESQ., 1873 S BELLAIRE ST, SUITE 1200, DENVER, CO, 80222 (For Claimant)
RITSEMA LYON, Attn: KELLY KRUEGEL, ESQ., 999 18TH ST., SUITE 3100, DENVER, CO, 80202 (For Respondents)
PINNACOL ASSURANCE, Attn: RAYMOND CALLAHAN, ESQ., 7501 E LOWRY BLVD, DENVER, CO, 80230 (Other Party)