Opinion
W.C. No. 4-810-664.
February 8, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated June 28, 2010, that denied and dismissed the claim for compensation. We affirm.
The claimant was employed as a laborer for the employer. The claimant testified that on November 24, 2009 he was unloading a co-worker's (Sorenson) truck, moving a compressor and injured his back. The claimant testified he continued to work for a couple of hours and had to ask another co-worker (Hemme) for help in spreading shingles.
The employer obtained written statements from Sorenson and Hemme that indicated the claimant hurt his back when he coughed. The claimant had previously experienced low back pain on August 6, 2009 which had been brought on by a hard cough. The claimant denied experiencing back pain after August 6, 2009. However, the claimant applied for a medical marijuana card on October 16, 2009, approximately six weeks prior to the injury. The claimant indicated on his medical marijuana health history questionnaire that he had spasms and chronic pain that began eight years ago for which he last sought treatment in August.
The ALJ found significant factual disputes existed regarding the alleged injury. The claimant testified he was moving air compressors on the morning of November 24, 2009 and the respondents presented testimony that the claimant was not moving air compressors. The ALJ resolved the dispute by determining that the claimant suffered pain in his back as the result of an incident when he coughed while at work and not as a result of lifting air compressors. Therefore, the ALJ determined that the claimant had failed to prove by a preponderance of the evidence that his injury arose out of and in the course of his employment with the employer. The claimant brings this appeal.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his condition arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S.; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). 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. 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).
We initially note that at the time of the hearing the claimant represented himself. A number of the claimant's arguments on appeal, currently made by his retained counsel, appear to be on evidentiary matters which were not raised before the ALJ. However, pro se litigants must adhere to the same principles and procedures as those who are qualified to practice law. Feeney v. Steamboat Ski Resort Corp., W. C. No. 4-246-365 (March 05, 1996). Pro se parties must be prepared to accept the consequences of their own tactical and procedural errors. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980); Rosenberg v. Grady, 843 P.2d 25 (Colo. App. 1992). Here, the claimant was specifically advised of this by the ALJ and chose to proceed without an attorney. Tr. at 3-4.
The claimant argues that the ALJ based his decision in part on a witness statement from the co-worker Hemme. The ALJ made the following findings regarding Hemme's statement. According to Hemme's statement he was on the roof when he heard the claimant cough and the claimant informed the foreman that he hurt his back when he coughed. This confirmed the testimony of the foreman on the job, Sorenson, who testified that he and the claimant were smoking on the grounds when the claimant coughed and said he hurt his back. Sorenson testified that the claimant informed him that he had hurt his back this way before and the claimant continued to work until lunch. Sorenson testified that he disagreed with the claimant's assertion that he was on the roof with Hemme while "Bob" and the claimant were changing out the air compressors. The owner testified that Bob was working with him on a different job site at the time the claimant reported his injury and that the claimant informed him he hurt his back when he coughed. The ALJ specifically noted that Hemme had no financial interest in the outcome of the case as opposed to the other witnesses.
The claimant argues that proper exchange of the Hemme statement as provided for in § 8-43-210 C.R.S. was not made. Section 8-43-210 provides that certain records, including employer records, shall be exchanged with all other parties at least twenty days prior to the hearing date. Even assuming that the witness statement from the co-worker was an employer record and therefore had to be exchanged under § 8-43-210, we perceive no reversible error in the ALJ's consideration of the statement.
Under the Colorado Rules of Evidence, before error may be predicated on allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1); see also § 8-43-210, C.R.S. (rules of evidence apply in workers' compensation proceedings); Gallegos v. B M Roofing, W.C. 3-962-465 (January 25, 1991). Here, the claimant made no objection to the respondents' exhibits, including statements from co-workers. Tr. at 15. Therefore, we are not persuaded that the ALJ committed reversible error by considering the witness statement. Loofbourrow v. Harman-Bergstedt, Inc. W.C. No. 4-804-458 (October 07, 2010).
Further, as an additional basis upon which to decline to interfere with the ALJ's order, we are not able to consider on appeal arguments not raised by the claimant before the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). Here, the claimant has not directed us to, nor are we aware of, any dispute at the time of the hearing regarding the timely exchange of exhibits under § 8-43-210. Because the argument under § 8-43-210 is raised for the first time on appeal we need not consider it.
The claimant next argues that the respondents failed to properly disclose as required by § 8-43-210 and the Colorado Rules of Civil Procedure 26(a)(1)(A) the identity and address of the co-employee "Bob." The claimant contends that under C.R.C.P. 26(a)(1)(A) the respondents had the duty to disclose the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying who the person is and the subjects of the information.
We simply do not read the plain language contained in § 8-43-210 as creating an obligation on the part of the respondents to disclose information on individuals likely to have discoverable information. In interpreting these provisions, we apply the ordinary rules of statutory construction. The purpose of statutory construction is to affect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Because § 8-43-210 contains no such provision we are not at liberty to read such a provision into the statute. Kraus v. Artcraft Sign Co., 710 P.2d 480, 482 (Colo. 1985) ("We have uniformly held that a court should not read nonexistent provisions into the Colorado Workmen's Compensation Act.")
The Office of Administrative Courts' Rule of Procedure (OACRP) 2(B), 1 Code Colo. Reg. 104-3 (2010), provides that the Colorado Rules of Civil Procedure apply to Workers' Compensation hearing unless they are inconsistent with its rules and the provisions of the Workers' Compensation Act (Act). Some of the Colorado Rules of Civil Procedure have been found to be applicable to workers' compensation cases. See generally Speier v. Industrial Claim Appeals Office, 181 P.3d 1173 (Colo. App. 2008); Powderhorn Coal Co. v. Weaver 835 P.2d 616 (Colo. App. 1992); see also Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991) (C.R.C.P. 26 used in workers' compensation cases).
However, in our view the mandatory disclosure requirements of persons with discoverable information contained in C.R.C.P. 26(a)(1)(A) are generally inapplicable to workers' compensation proceedings. It is provided in § 8-43-211(2)(B), C.R.S. that any party may request a hearing on issues ripe for adjudication by filing a written request with the Office of Administrative Courts on forms provided by the office. Here, the claimant filed an Application For Hearing and Notice to Set on the appropriate Office of Administrative Hearings form. The respondents filed a Response to Application for Hearing on a similar form prepared by the Office of Administrative Courts. The response only requires the party to list witnesses and addresses to be called at hearing or by deposition. The respondents complied with the requirements of this form. In addition, OACRP Rule 13, allowing only endorsed witnesses to testify, and Rule 20, requiring parties to identify the names of witnesses to testify at hearing, do not require the disclosure of individuals possessing discoverable information. Therefore, we are not persuaded that a remand is necessary because the respondents did not meet the mandatory disclosure requirements found in C.R.C.P. 26. See Hand v. Petersen Contractors W.C. No. 4-392-766 (September 16, 2008) (refusal to import to the workers' compensation system the entirety of the strict pretrial disclosure provisions of C.R.C.P. 26 does not constitute an abuse of discretion); See also Wilkinson v. COLOWYO Coal, W.C. No. 4-723-603 (August 28, 2009) (denying request that the claimant be deemed to have had admitted to a safety rule violation by virtue of his failure to timely respond to the respondents' requests for admissions under C.R.C.P. 36). We additionally note that the claimant did not raise the argument concerning C.R.C.P. 26(a)(1)(A) before the ALJ and therefore again we need not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994).
The claimant points our attention to certain medical records in the file and his own testimony contending that the facts compel a decision in his favor. However, the compensability of the claim here was factual in nature and we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. The claimant's assertion notwithstanding, the testimony of the employer, witnesses, the August 6, 2009 record from the emergency room at Memorial Hospital and the disclosures in the application for the claimant's medical marijuana card fully support the ALJ's findings and the conclusion that the claimant failed to carry his burden of proof. Exhibit C; Exhibit F, at 68; Exhibit E at 23. See Snyder v. Industrial Comm'n of Colo. 138 Colo. 523, 527 335 P.2d 543, 546 (1959)("Our function is to note the existence of such disputed evidence, and once it appears, our duty ends, for we must leave to the hearer of the evidence the problems of whom to believe and where the preponderance of proof is.")
IT IS THEREFORE ORDERED that the ALJ's order dated June 28, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
________________________________ Thomas Schrant
EDWARD T. BULLOCK, CENTENNIAL, CO, (Claimant).
CONTINENTAL SERVICES, Attn: RICK SORENSEN, AURORA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICES OF RICHARD SCHWARTZ, Attn: RICHARD A. SCHWARTZ, JR., HIGHLANDS RANCH, CO, (For Claimant).
RITSEMA LYON, PC, Attn: BRET J. ROUNDY, ESQ., DENVER, CO, (For Respondents).