Opinion
W.C. No. 4-300-974.
September 3, 2008.
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated February 27, 2008, that determined the claimant had failed to establish that he was permanently and totally disabled. We affirm.
The claimant sustained an admitted injury to his back on June 21, 1996. The matter was heard on the issue of permanent total disability (PTD) benefits on November 1, 2007. A summary order issued on November 7, 2007 awarding PTD benefits. The respondents filed a request for specific findings of fact and conclusions of law. The ALJ issued his Findings of Fact, Conclusions of Law and Order dated November 21, 2007, ordering the insurer to pay the claimant PTD benefits. The respondents filed a motion to set aside the specific Findings of Fact, Conclusions of Law, and Order. The ALJ issued an order dated December 5, 2007, noting that the claimant's proposed order was to have been provided to the respondents' counsel, but the claimant had not provided such a copy to the respondents, and describing the communication as ex parte. The ALJ vacated the November 21, 2007 Findings of Fact, Conclusions of Law and Order. In his order of December 5, 2007, the ALJ treated the respondents' motion to set aside the Findings of Fact, Conclusions of Law, and Order dated November 21, 2007 as a petition to review. The respondents were granted leave to file an objection to the claimant's proposed Findings of Fact, Conclusions of Law and Order. The respondents filed a corresponding objection and requested reconsideration of an evidentiary ruling excluding from evidence a 2002 video of the claimant. The ALJ by order of December 19, 2007 granted the claimant leave to respond to the respondents' motion for reconsideration. The ALJ entered an order dated January 8, 2008 in which he determined that the video was excluded based on his understanding that respondents had not provided the claimant with a copy of the video, but that his understanding was incorrect. Therefore, the ALJ ordered that a continued hearing be arranged. A further hearing was held on February 14, 2008 and the video was admitted into evidence. The ALJ found that the video showed the claimant engaged in rigorous physical ranch work in stark contrast to the complaints, image, and behavior he presented in his medical appointments. The ALJ then issued the February 27, 2008 order under appeal here in which he found the claimant had demonstrated many significant inconsistencies and deceptions and, also, found that the claimant's description of his symptoms and limitations was not credible. The ALJ found the claimant was capable of earning wages and failed to establish by a preponderance of the evidence that he was permanently and totally disabled.
I.
On appeal, the claimant contends that having entered a summary order and thereafter a full order, the ALJ erred in setting aside the full order because the claimant did not copy his draft of the full order to the respondents. The claimant argues that the ALJ erred in setting aside the full order to permit respondents to object to the claimant's draft of the full order. According to the claimant, the ALJ may not reopen the hearing to permit respondents to present additional evidence which the respondents were not prepared to present at the hearing. We disagree.
As we read the ALJ's orders, he treated the respondents' motion to set aside the Findings of Fact, Conclusions of Law, and Order dated November 21, 2007 as a petition to review. We perceive no error in the ALJ's characterization of the respondents' motion for it has been held that a petition to review need not take any particular form nor be captioned in any particular fashion. For instance, a written letter setting forth counsel's specific objections to a particular order has been held sufficient to constitute a petition to review if timely filed. Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970), disapproved on other grounds, 682 P.2d 1185 at 1188; see also, Ward v. Azotea Contractors, 748 P.2d 338, 340 at n. 3 (Colo. 1987).
Further, it is provided in § 8-43-301(5), C.R.S. 2007 that in ruling on a petition to review the ALJ may issue a supplemental order, amend the original order or set the matter for further hearing. The Panel has previously determined that § 8-43-301(5) affords an ALJ jurisdiction to reopen a hearing after the apparent conclusion of the proceedings in order to receive additional evidence pertinent to determining the compensability of the claim. See Gilbert v. Rider Woulf, P.C., W.C. 4-243-377 (July 13, 1998), affd, Gilbert v. Rider and Woulf, P.C, No. 98CA1393 (Colo.App., Apr. 29, 1999) (not selected for publication); Roe v. Hall Irwin Corporation, W.C. No. 4-703-346 (April 10, 2008); Hancock v. Colorado Mountain Express LLC A/K/A East West Resort Transportation, W. C. No. 4-570-122 (February 14, 2005); Hernandez v. Wendy's International, Inc., W. C. No. 4-562-710 (December 19, 2003).
The ALJ is given substantial discretion in the conduct of evidentiary proceedings, and we may not interfere with his decision to reopen the proceedings unless an abuse of discretion is shown. Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430 (Colo.App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse is not shown unless the ALJ's decision 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).
Here, at the November 1, 2007 hearing the claimant testified that he was familiar with the videotapes that were taken of him in 2002. Tr. (11/1/07) at 29. The respondents requested permission to show the video during cross-examination of the claimant. Tr. (11/1/07) at 31. The ALJ sustained an objection at that time on the ground that it was cross-examination and not the proper time for it. Tr. (11/1/07) at 34. The respondents later in the hearing presented the testimony of an investigator who took the video and at that time, the respondents again sought permission to show the videotape. Tr. (11/1/07) at 105. The claimant objected on the ground that he had not been provided with the video. Tr. (11/1/07) at 107. At the hearing, there was a dispute among the parties on the date the video was taken and whether counsel for the claimant had seen it. Tr. (11/1/07) at 107-16. Counsel for the claimant was shown the video and acknowledged that he had seen the video, although he believed it was taken in 2000 rather then in 2002. Tr. (11/1/07) at 117. The ALJ upheld the claimant's objection to the videotape and excluded it from evidence. Tr. (11/1/07) at 121. Exhibit N. We note that the videotape appears to have been misidentified as Exhibit M at the first hearing but was admitted as I at the second hearing. Tr. (2/14/08) at 13. The respondents sent a letter to counsel for the claimant in 2002 with copies of seven surveillance videotapes taken of the claimant. Exhibit 1.
As noted above there is ample evidence to support the ALJ's conclusion that his understanding that respondents had not provided the claimant with a copy of the video was incorrect. Here the video was excluded based on the ALJ's misunderstanding. In our opinion, the ALJ did not abuse his discretion in reconsidering his evidentiary ruling exulting from evidence the videotape of the claimant.
An ALJ may properly reconsider a ruling, even sua sponte, if the parties were afforded due process in the first ruling. See Provo v. Industrial Claim Appeals Office 66 P.3d 138 (Colo.App. 2002), affd in part and rev'd in part on other grounds, Dworkin, Chambers Williams, P.C v. Provo, 81 P.3d 1053 (Colo. 2003); see also, Bigby v. Big 3 Supply Co. 937 P.2d 794 (Colo.App. 1996). Further decisions with respect to motions to reconsider prior rulings in a case may not be reversed unless the circumstances show that the trial court abused its discretion. See Halter v. Waco Scaffolding Equipment Co. 797 P.2d 790 (Colo.App. 1990).
Here, the ALJ by order of December 19, 2007 granted the claimant leave to respond to the respondents' motion for reconsideration. We are not convinced that the ALJ abused his discretion when he exercised his prerogative to reconsider the admissibility of the videotape.
II
The claimant next contends that the ALJ erred in admitting at hearing a videotape because he was denied due process of law. We disagree.
As noted above there was ample evidence that videotapes of the claimant's activities had been disclosed prior to the hearings of November 1, 2007 and February 14, 2008. Further, the claimant appears in his brief to have conceded that the respondents provided him with seven video tapes. However, the claimant contends that the new videotape was a compilation of the earlier surveillance tapes and, having not seen the compilation videotape in advance, he was denied the opportunity to prepare a contradictory compilation videotape.
A party's right to procedural due process is met if the party is provided with notice and an opportunity to be heard. Public Util. Comm'n v. Colo. Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness. City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). Here the ALJ noted at the second hearing held on February 14, 2008 that the videotape had been in the court's file since the November 1, 2007 hearing and the claimant had plenty of time to see it during that time. Tr. (1/14/08) at 13. Further, the ALJ offered to continue the hearing for the claimant if he felt there was any unfair surprise, but the claimant did not ask for a continuance. Tr. (1/14/08) at 22. Therefore, in our opinion, the claimant had a fair opportunity to be heard and we perceive no abuse here of the ALJ's wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2007; see IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
III.
The claimant finally contends that the ALJ erred in denying permanent total disability benefits. The claimant argues that the videotape was taken years before the hearing and the claimant's ability to perform the functions shown on the videotape did not mean that the claimant could still perform them at the time of the hearing. We are not persuaded that the ALJ erred.
In our opinion, the fact that the videotape was taken years before the hearing goes to the weight of the evidence, but did not as a matter of law prevent the ALJ from admitting it into evidence and relying on it. We note that the weight and credibility to be assigned evidence is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Because the issue 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. 2007. 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).
Here the claimant had not been treated for years before the 2007 hearing. Tr. (11/1/07) at 12. There is even evidence that the claimant's condition had improved after the videotape was taken in 2002. Dr. Struck rated the claimant's impairment at 20 percent in 2004 while the previous rating was 24 percent in 1997. Exhibit G. The evidence can be viewed as suggesting that rather than worsening since the videotape was taken the claimant's condition, if anything, had improved. We cannot say the ALJ erred in relying on the videotape.
The claimant further contends that all of the objective medical evidence shows that the claimant was not capable of work and the ALJ erred in relying on his determination that the claimant's subjective complaints were invalid. In our view, the record does not compel that conclusion. The treating physician, Dr. Richman, after seeing the videotapes stated that the claimant's activities were not consistent with his presentation during his appointments and it was likely that the claimant would not have any restrictions in standing and walking. Exhibit A.
Further, the determination of permanent total disability is not defined exclusively in terms of medical impairment See Best-Way Concrete Co. v. Baumgartner 908 P.2d 1194 (Colo.App. 1995). Here the respondents' expert in vocational rehabilitation counselor testified that relying on the Division-sponsored independent medical examiner's restrictions, the claimant was able to earn a wage. Tr. (11/1/07) at 125-26. We perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued February 27, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
BRUCE WILLIAMS, 2716 W. BIJOU ST, CO SPRINGS, CO, 80904 (Claimant).
KUNAU DRILLING, Attn: TIMOTHY R KUNAU/MS SANDY KUNAU, CALHAN, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, DENVER, CO, (Insurer).
ALEXANDER RICCI, PC, Attn: WILLIAM A ALEXANDER JR, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: DAVID L SMITH, ESQ, DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS KATHY BERNARD, DENVER, CO, (Other Party).