Opinion
W.C. No. 4-651-835.
August 31, 2006.
FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Jones (ALJ) dated May 23, 2006 that determined that the claimant failed to prove that he sustained a compensable injury and that, therefore, denied and dismissed the claim. We affirm.
A hearing was held on the issues of the compensability of the claimant's claim, and his entitlement to indemnity and medical benefits. Following the hearing the ALJ entered findings of fact that may be summarized as follows. The claimant alleged that he injured his knee when, on May 22, 2005, he knelt on the carpet to take a customer's order and a small sliver of glass became embedded in his knee. He allegedly discovered the glass that evening when he squeezed a small red swelling on his knee and the glass came out. His knee worsened, and he consulted Dr. Montano, who prescribed antibiotic treatment. Dr. Montano reported in his chart notes that the claimant "squeezed what he tough was an infected hair follicle and got puss out 4 days ago." The doctor also reported that the claimant stated that his knee problem began as "an ingrown hair or pimple," and that the claimant did not report that he had been injured at work. Dr. Montano diagnosed the claimant with cellulitis secondary to folliculitis and also stated that two smaller lesions on the claimant's leg were also consistent with folliculitis. The ALJ found that the claimant contacted medical providers at the clinic and urged them to modify their medical records to reflect that the claimant had reported that he had been injured at work. The doctors declined to amend the medical records. Subsequently, the claimant developed an infection in his knee that required aggressive medical treatment, including several hospitalizations. Dr. Jacobs conducted an independent medical examination and opined that it was not medically probable that the injury was caused by a piece of glass and occurred as described by the claimant. The ALJ expressly rejected the claimant's version of the events as not credible and, conversely, credited the opinion of Dr. Jacobs that the injury occurred when the claimant "picked" at a pimple, which subsequently developed an infection.
Based upon her findings of fact, the ALJ concluded that the claimant failed to carry his burden of showing that he sustained a compensable injury. Accordingly, she denied and dismissed the claim. The claimant appealed and asserts numerous errors. We are unpersuaded by the claimant's arguments that the ALJ erred.
It was the claimant's burden to prove a causal relationship between an alleged industrial injury and the medical condition for which he seeks benefits. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The question of whether an industrial injury is causes the need for medical treatment is largely one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). In this regard, it was solely the prerogative of the ALJ to assess the weight, the credibility, and the probative value of the medical testimony offered on the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, to the extent the testimony of a medical expert contained inconsistencies, or was subject to multiple interpretations, it was for the ALJ to resolve such conflicts, and we are bound by her resolution of conflicts in the medical evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Because these questions are factual in nature, we are bound by the ALJ's determinations in this regard if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990). We may only interfere with the ALJ's credibility determinations in extreme circumstances, such as where the testimony believed by the ALJ was rebutted by such hard, certain evidence that it would be error as a matter of law to credit it. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). Contrary to the claimant's arguments, that is not the case here and we are not at liberty to disturb the findings.
There is ample evidence in the record supporting the ALJ's factual findings, which in turn support her conclusion that the claimant did not carry his burden of showing that he sustained an industrial injury. The ALJ expressly credited the opinions of Drs. Montano and Jacobs in support of her conclusion that the claimant was not injured at work. Dr. Montano testified that the claimant initially complained that he had "a pimple or an ingrown hair," and that he did not mention that a piece of glass had become embedded in his knee. Tr. (3/1/06) at 105-06. He further testified that he diagnosed the claimant's condition as being caused by folliculitis, which is an infected hair follicle. Tr. (3/1/06) at 106. Dr. Jacobs, who performed an independent medical examination, also testified and stated that it was "highly unlikely" that the piece of glass became embedded in the claimant's knee consistent with his version of the injury. Tr. (4/24/06) at 23-24. The doctor also testified that the claimant's "story changed over time as to whether there was a piece of glass or not," and that "the most incredible thing of all was when he first sought medical help with this, there was no history of any glass." Tr. (4/24/06) at 24. The doctor opined that "I don't think there ever really was a sliver of glass." Tr. (4/24/06) at 39. The opinions of Dr. Montano and Jacobs provide ample support for the ALJ's findings concerning the cause of the claimant's knee infection.
We note that, although the ALJ is not required to articulate the bases for her credibility determinations, Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987), in this case she did so. In crediting the opinions of Drs. Montano and Jacobs and rejecting the testimony of the claimant, the ALJ expressly relied upon the inconsistencies in the claimant's reports to various medical providers and the claimant's subsequent efforts to persuade the providers to amend their medical records. As noted, the assessment of the probative value of competing evidence is solely the province of the ALJ, and the grounds she articulated for reaching her conclusions are wholly legitimate ones. Here, it is clear that the ALJ resolved the conflicts in the expert testimony in favor of the respondents' position, and we may not reweigh the evidence and disturb her credibility determinations.
Moreover, we are not persuaded by the claimant's specific arguments that the ALJ committed reversible error. In the portion of his brief titled "Argument" the claimant sets forth twelve specific "reversible, prejudicial" errors, in which he chiefly complains of particular findings of fact entered by the ALJ. In general these disputed findings are not dispositive, they do not support the inference urged by the claimant on appeal, and they are amply supported by the record.
The claimant first alleges as "reversible, prejudicial" error the ALJ's factual finding that the claimant testified that he attended medical school. First, the claimant did testify that at the time of the hearing he was attending medical school at the University of North Carolina, and therefore the finding is neither inaccurate nor unsupported by the record. Tr. (3/1/06) at 35. Insofar as the claimant invites us to infer that the ALJ was "biased" because she merely found that the claimant "testified" to his enrollment in medical school, we decline to do so. Even assuming — although we do not — that such an inference of bias is a plausible one, it falls far short of the showing necessary to raise a claim that the fact finder is not impartial. See Nesbit v. Industrial Commission, 43 Colo. App. 398, 607 P.2d 1024 (1979) (substantial showing of personal bias necessary to support conclusion that hearing was unfair); In Re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (Colo.App. 1977) (adverse ruling alone does not support conclusion that hearing officer was biased).
The claimant next contends that the ALJ erred in finding that he "pressure[d]" medical providers to amend the medical records so that they would reflect that the claimant reported kneeling on a sliver of glass. First, we note that, in rejecting the claimant as not credible, the ALJ expressly relied on the claimant's efforts to amend the medical records. Therefore, this finding, if not dispositive, is at least a critical one underlying her credibility determination. It is, however, uncontested that the claimant corresponded with and telephoned medical providers requesting that they amend his medical records. Apparently the claimant objects to the ALJ's characterization of these requests as "pressur[ing]" the providers, rather than merely making "no nonsense requests." Claimant's Brief at 38. However, the record reflects that the claimant telephoned Dr. Montano's clinic and requested that the medical records be amended. When his request was declined, he followed up with a written demand. At the hearing the claimant was asked by respondents' counsel whether he then "wrote numerous letters to almost every physician and nurse who examined you. . . ." Tr. (3/1/06) at 76. He responded, "Yes, I did contact most of my health care providers." Tr. (3/1/06) at 76. In our view, whether the claimant's repeated requests to almost all of his providers constituted "pressure" on them to change the medical records is a determination within the province of the fact finder while weighing the evidence. It is a reasonable inference from this record that the claimant "pressure[d]" the medical providers by his efforts to have the records amended. We therefore decline to interfere with the ALJ's finding.
The claimant also alleges that the ALJ erred in entering a finding that his outstanding medical bills amounted to $131,000, supposedly raising an inference that his liability for those outstanding bills created an incentive on his part to falsify his claim. In rejecting this argument as wholly without merit, we note that if the ALJ were to draw that inference it is immaterial whether she entered an actual finding concerning the amount of the outstanding bills. Rather, the inference that the claimant had an incentive to falsify the claim was raised by the evidence that those bills were contested. Consequently, the claimant's complaint regarding the finding has no merit. Moreover, we note that the claimant at the outset of the hearing requested only a general order to pay medical benefits, and that he testified that the bills had been paid by his health insurer. Further, the record is devoid of any suggestion that the ALJ did actually infer that the outstanding bills constituted an incentive for the claimant to lie.
The claimant also argues that the ALJ erred in excluding from evidence his proffered exhibits (13 and 14) consisting of letters and email transmissions attesting to the honesty and general high character of the claimant. CRE 608 permits evidence of character under certain circumstances. The rule provides that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." Even assuming, without deciding, that the letters were admissible pursuant to CRE 608, we agree with the ALJ that they were properly excluded from evidence.
First, we note that the letters were proffered as "Rule 8" submissions, by which we presume the ALJ was referring to documentary evidence customarily submitted at the commencement of a hearing pursuant to § 8-43-210, C.R.S. 2005. That section provides that the following documentary evidence is admissible without identification: "medical and hospital records, physicians' reports, vocational reports, and records of the employer. . . ." The claimant submitted the letters, referred to as exhibits 13 and 14, at the commencement of the hearing along with a number of other proposed exhibits. Following the general discussion regarding the proposed exhibits, the ALJ ruled that exhibits 13 and 14 "will not be admitted as Rule 8 submissions." Tr. (3/1/06) at 25.
We perceive no error in this ruling. The letters clearly do not come within the terms of § 8-43-210 and were, therefore, not properly admitted at the commencement of the hearing. The letters were obviously not medical records, physicians' reports, or records of the employer, and we know of no principle, and the claimant has provided us with none, permitting admission pursuant to § 8-43-210 of letters attesting to the claimant's character. Further, we reject the claimant's argument that the letters, which he concedes were hearsay, were properly admissible pursuant to the residual hearsay exception articulated in CRE 807. That rule requires a showing that the statements were offered as evidence of a material fact, that the statements were more probative than any other evidence reasonably procured by the proponent, and that the interests of justice would be served by admission of the statements. The record does not reflect that the necessary showing under CRE 807 was made, and we perceive no error in the ALJ's exclusion of the proffered letters.
The claimant next contends that it was error for the ALJ to quash a subpoena seeking production of Dr. Jacobs' "entire file." See Tr. (4/24/06) at 62. We are not persuaded that the ALJ erred in this respect. Workers' Compensation Rule of Procedure 9-1(D) provides that discovery "shall be completed no later than 20 days prior to the hearing date. . . ." Here, the subpoena was served following the completion of the first hearing and only seven or eight days prior to the date of the continued hearing. Tr. (4/24/06) at 63. The claimant's attorney apparently wished to review the doctor's file in order to ascertain whether his financial arrangement with the respondents would support an inference that the doctor was biased in favor of the respondents. Counsel for the claimant stated that he deliberately delayed serving the subpoena in order that the doctor's billing information would fully reflect his total charges in the case. We are unable to locate any order in the record permitting discovery to continue past its closure date under Rule 9-1(D).
Moreover, 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. 2005; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not interfere with the ALJ's evidentiary rulings in the absence of an abuse of discretion. Denver Symphony Ass'n v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974).
The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Moreover, the party alleging an abuse of discretion must show sufficient prejudice before it is reversible error. CRE 103(a); Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984).
Here counsel for the claimant had already asked a number of questions regarding the fees charged by Dr. Jacobs. See Tr. (4/24/06) at 44-49. Counsel for the claimant also asked questions about a legal action involving another patient. See Tr. (4/24/06) at 43-44. The ALJ's implicit determination that the potential probative value of additional evidence on these matters was outweighed by the unfair prejudice to the respondents does not exceed the bounds of reason. Under these circumstances, the ALJ did not err in quashing the subpoena.
The claimant also contends that the ALJ erred in refusing to permit the claimant to call Cassie Battin as a rebuttal witness. The claimant's offer of proof stated that Battin would rebut the respondents' evidence that the claimant did not routinely kneel while taking orders and that the claimant did not report that he had discovered a sliver of glass in his knee until May 31st. Tr. (4/24/06) at 71. We conclude that the ALJ did not abuse her discretion in refusing to permit Battin's rebuttal testimony. In any event, even if the ALJ erred in excluding this rebuttal testimony, any error was harmless.
The decision whether to admit rebuttal testimony is committed to the sound discretion of the ALJ, and we may not interfere with the decision to exclude testimony unless an abuse is shown. In re Marriage of Antuna, 8 P.3d 589 (Colo.App. 2000). Further, the ALJ enjoys wide discretion in the conduct of evidentiary proceedings. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse of discretion is not shown unless the ALJ's ruling is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). The purpose of rebuttal testimony is to explain, counteract, or disprove the proof of the opposing party. It is evidence that tends to contradict the adverse party's case, whether it be challenging the testimony of a specific witness or refuting the adverse party's entire theory or claim. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). Such testimony may be admitted in rebuttal even if it might have supported the proponent's case in chief. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973).
As noted, the claimant's attorney stated by way of an offer of proof that Battin would rebut the testimony that the claimant did not kneel when serving customers, and the testimony that he did not report kneeling on a sliver of glass to any of his doctors. However, regarding the former, the claimant was permitted to call Sally Clark as a rebuttal witness, and Clark testified that "[the claimant] knelt down" when taking the orders. Tr. (4/24/06) at 69. Under these circumstances, it was within the ALJ's discretion to exclude Battin's testimony as cumulative. Moreover, we do not understand the ALJ's order as turning on the factual question whether the claimant did or did not kneel down at work. Rather, she credited the medical evidence that it was unlikely that the claimant's infection occurred as he had described. Further, regarding the report of the mechanism of injury, it is unclear from the claimant's offer of proof how Battin could rebut the doctor's testimony that the claimant did not report kneeling on a sliver of glass to the doctor. Further, the claimant was permitted to testify that he told Battin about his knee problems, and the ALJ could reasonably view the proposed rebuttal testimony as unnecessarily cumulative. Tr. (4/24/06) at 79. Accordingly, in the absence of an offer of proof containing sufficient detail, we are left to speculate concerning the nature of the claimant's report to Battin, and its connection to the claimant's report to his doctors. Under these circumstances, we cannot state that the ALJ's decision to exclude the proffered testimony was beyond the bounds of reason. Further, evidence that the claimant kneeled to take orders and related to Battin at some point that he had a sliver of glass in his knee, even if found persuasive by the ALJ, would not have altered her conclusion that the claimant did not sustain a work-related injury. As previously noted, in rejecting the claimant's version of the events surrounding the injury, the ALJ relied upon his initial failure to report the glass sliver to the doctors until May 31st. Testimony that he related the story to Battin several days earlier, on May 26th, does not in any material way alter the record relied upon by the ALJ. Hence, any error committed by the ALJ in refusing to permit the disputed testimony did not affect a substantial right of the claimant and was harmless.
Finally, the claimant enumerates eighteen "major errors" contained in Dr. Jacob's reports and testimony, and argues that, in light of these, it was reversible error for the ALJ to credit the doctor's opinion. The claimant alleges such errors as the doctor's statement that the claimant attended school in "Temple Hill" rather than at "Chapel Hill," the statement that the claimant had been in Ecuador two weeks prior to his accident rather than eight weeks, the statement that the claimant sought treatment on Wednesday night rather than Thursday morning, and other similar alleged factual errors. However, even assuming that the doctor's records and testimony contain the errors alleged by the claimant, it provides him no grounds for relief on appeal. The argument that the doctor's opinions contained errors and inconsistencies merely goes to the weight that should be afforded that evidence. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). It does not affect its admissibility or the ability of the ALJ to rely upon it in reaching her conclusions. The claimant's argument regarding errors in the doctor's records and testimony was more properly presented to the ALJ with the aim of persuading her that Dr. Jacob's opinions should be rejected. However, the argument falls far short of establishing that the doctor's opinions were nugatory as a matter of law.
We have considered the claimant's remaining arguments and they do not persuade us to reach a different result.
IT IS THEREFORE ORDERED that the ALJ's order dated May 23, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Patrick Smith, Chapel Hill, NC, Lone Star Steakhouse, Wichita, KS, Attn: Daisy Bloethner, Zurich North America, Colorado Springs, CO. Jack Kintzele, Esq., Denver, CO, (For Claimant).
Marsha A. Kitch, Esq., Evergreen, CO, (For Respondents).