Opinion
W.C. No. 4-488-209
October 22, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant sustained compensable injuries and awarded medical benefits. We affirm.
The claimant alleged work-related injuries on May 31, 1999, as a result of a slip and fall while performing her duties as a restaurant manager. Prior to the alleged injuries, the claimant had a history of migraine headaches, low back pain, and neck pain for which she sought treatment. A CAT scan of the claimant's neck performed in 1998 was normal. The claimant was also involved in 2 previous motor vehicle accidents.
On January 7, 2000, the claimant began treating with Dr. Crislip for the effects of the alleged industrial injuries. Dr. Crislip continued to treat the claimant after February 25, 2000, when the claimant was hit in the head with a hair dryer during a beauty parlor visit. Dr. Crislip opined that the hair dryer incident was an "insignificant injury." Accordingly, Dr. Crislip apportioned 90 of the claimant's need for cervical treatment to the industrial injury. Dr. Crislip also opined the industrial injury aggravated the claimant's pre-existing migraine headaches and low back pain, and caused a left hip injury.
The matter was heard by the ALJ at a hearing on December 12, 2001. Relying on the medical opinions of Dr. Crislip, the ALJ found the industrial accident caused an injury to the claimant's left hip. The ALJ also determined the claimant proved a compensable aggravation of her pre-existing neck pain, chronic migraine headaches, and chronic low back pain. Further, the ALJ credited Dr. Crislip's opinion that 90 percent of the claimant's need for treatment of her migraine headaches and neck pain after May 31 was caused by the industrial accident. Consequently, the ALJ ordered the respondents to provide medical benefits consistent with Dr. Crislip's apportionment.
I.
On review, the respondents' first contend the ALJ erroneously refused to consider the independent medical examination (IME) report of Dr. Sacha. We perceive no reversible error.
Initially, we note that the respondents' Designation of Record includes the "official files of the Division of Workers' Compensation and Division of Administrative Hearings." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the official Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
The applicable law is undisputed. Rule of Procedure VIII(I)(1), 7 Code Colo. Reg. 1101-3 provides that "only reports and records filed at the hearing will be considered as evidence." The rule further requires that such records and reports be provided to the opposing counsel "at least 20 days prior to the formal hearing," absent a showing of good cause.
Dr. Sacha's IME was conducted on November 13, 2001. It is undisputed his written report dated November 27, 2001, was not received by the respondents until November 30, 2002 and was faxed to the claimant's attorney the same day. Accordingly, the respondents concede they failed to comply with Rule VIII(I)(1).
However, the respondents contend they established good cause for the late submission of Dr. Sacha's report because November 13 was the earliest date available on Dr. Sacha's calendar to perform the IME and Dr. Sacha was unable to transcribe the report until November 27. In addition, the respondents contend they acted reasonably and prudent in providing the IME report to the claimant's attorney as soon as it was available.
The ALJ has considerable discretion in determining whether a party has demonstrated good cause for failing to provide a medical report to opposing counsel within the time limit established by Rule of Procedure VIII(I)(1). See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Factors which the ALJ may consider in determining whether good cause exists for the untimely submission of a medical report include the significance of the evidence, whether or not the evidence might have been obtained and submitted by the exercise of reasonable diligence prior to the hearing, and the prejudice to the opposing party by allowing the evidence. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
Because the ALJ's authority is discretionary, we may not interfere with the ALJ's ruling in the absence of an 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 the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The ALJ found the claimant's original Application for Hearing was filed May 9, 2001 and that the respondents' June 25 response indicated the claim was fully contested. A hearing was scheduled for August, but later vacated. The claimant then filed a new Application for Hearing dated August 29, 2001.
Based upon these findings, the ALJ determined the respondents had sufficient notice dating back to May 9, 2001, of the need to prepare evidence on the issue of compensability. Therefore, the ALJ did not consider the November 13 IME appointment date or the respondents' prompt exchange of the IME report to establish good cause for the late filing of Dr. Sacha's report. ( See Tr. pp. 8, 9).
The ALJ's findings of fact are supported by the record. Moreover, respondent's counsel was unaware of when the request for an IME was made. ( See Tr. p. 8). Consequently, we are not persuaded the ALJ's order to exclude the IME report of Dr. Sacha exceeds the bounds of reason.
II.
The respondents also contend the ALJ's findings do not support the award of benefits and the findings are not supported by the record. The respondents contend evidence concerning the claimant's pre-existing condition, the previous motor vehicle accidents, the 1998 request for a CAT scan, and the subsequent intervening injury refute the claimant's assertion of a causal connection between the industrial accident and the claimant's need for medical treatment. We reject these arguments.
A compensable industrial accident is one which results in an injury requiring medical treatment or causing disability. The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury where an industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990). Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988).
The issue of whether the claimant's condition is the natural and proximate progression of the original condition, a new industrial injury, or a subsequent intervening injury is one of fact for resolution by the ALJ based upon the evidentiary record. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Accordingly, we are bound by the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002 ; 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 or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard, we must view the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ relied on the opinions of Dr. Crislip in finding the claimant sustained her burden to prove a causal connection between the industrial accident and her need for medical treatment. We may not substitute our judgment for that of the ALJ concerning the credibility and probative weight of the evidence, and we decline the respondents' invitation to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Dr. Crislip was aware of the claimant's history of migraines, pre-existing spondylosis, and the hair dryer incident. ( See Dr. Crislip, March 10, 2002). However, Dr. Crislip was of the opinion this was a "minor event." ( See Dr. Crislip August 20, 2001). In support, Dr. Crislip noted that MRI test results after the industrial injury revealed evidence of early desiccation at C3-4, with a mild disc bulge. No disc herniation was noted in the 1998 CAT scan. Further, Dr. Crislip reported that an MRI taken after the hair dryer incident showed no change in the claimant's condition. ( See Dr. Crislip October 30, 2001; December 4, 2000). Dr. Crislip also opined the industrial injury caused a "minor injury" to the lumbar spine.
Dr. Crislip's opinions are consistent with the claimant's testimony that her neck was feeling "pretty good" before the industrial injury and that she did not require any medical treatment following the motor vehicle accidents in 1994 and 1995. (Tr. pp. 28). In contrast, the claimant testified her migraine headaches increased in severity and duration after the industrial injury. (Tr. p. 20). Further, the claimant stated that her head hurt after the hair dryer incident, but the pain did not last "very long" and there were no lasting effects from the injury. (Tr. p. 22). Consequently, we cannot say the ALJ erred in crediting the opinions of Dr. Crislip. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ's credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony).
The respondents point out the claimant's testimony that she fell on her right side and suffered injuries to her right side as a result of the industrial accident. However, Dr. Crislip opined the industrial injury caused left-sided injuries. The claimant's testimony is subject to conflicting inferences. The claimant also demonstrated some confusion between her left and right. (Tr. pp. 29, line 13-21). However, the claimant admitted that emergency room records which listed a fall on her left side were correct. ( See Tr. p. 29). As we read the ALJ's order, she resolved the conflict by crediting Crislip's opinions that the industrial accident caused injuries to the left side of the claimant's body. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inference may be drawn from the evidence, we may not substitute our judgment for that of the ALJ).
Because there is substantial evidence in Dr. Crislip's reports to support the ALJ's pertinent findings of fact, they must be upheld on review. Further, the ALJ's findings support the award of benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated January 9, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 22, 2002 to the following parties:
Mary M. Williams, P. O. Box 1591, Estes Park, CO 80517
Bob Swisher, Pizza Hut, 2625 Midpoint, Ft. Collins, CO 80525
Legion Insurance Company, P. O. Box 59239, Philadelphia, PA 19102
Tina Aichele, GAB Robins North America, Inc., P. O. Box 370750, Denver, CO 80237-0750
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Christina Middendorf Smith, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: _______A. Hurtado_______