Opinion
W.C. No. 4-779-747.
November 15, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated February 2, 2010, that ordered the respondents to pay temporary partial disability benefits beginning on January 1, 2008. We affirm.
A hearing was held on the sole issue of the claimant's entitlement to temporary partial disability benefits beginning on January 1, 2008. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant works for this employer as a dental hygienist. She sustained an occupational disease affecting her upper extremities with a date of injury of June 15, 2005. Because of the effects of her occupational disease she began to reduce the hours she was working beginning on January 1, 2008. The claimant was working under an employment contract that paid her an annual salary and that required her to bill 1,496 hours per year. The parties stipulated that under this arrangement the claimant's average weekly wage was $1,155.69.
The ALJ further found that during 2007 the claimant reduced her hours because of the effects of her occupational disease, and that by the end of the year she had failed to bill the required hours. Consequently, she was required to pay back to the employer a certain portion of her salary on account of the arrearage in hours at the end of the year. Therefore, beginning in 2008 the claimant renegotiated her contract to require her to bill fewer hours, and, as a result, she earned less under the renegotiated contract. The ALJ expressly found that the reason for the claimant renegotiating her contract was the temporary disability caused by her occupational disease. The claimant was evaluated by Dr. Isser-Sax and then returned to her on November 13, 2008, when the doctor imposed restrictions of working only seven hours in a day. Dr. Weber, who had treated the claimant and who referred her to Dr. Isser-Sax, agreed with the restrictions.
Based upon his finding that the claimant's reduction in her salary was attributable to the effects of the occupational disease, the ALJ concluded that the claimant was entitled to temporary partial disability benefits. The ALJ ordered the respondents to pay those benefits commencing on January 1, 2008 and continuing until terminated pursuant to applicable law.
Because certain of the respondents' arguments refer to and depend upon prior proceedings, we note that on April 14, 2009, a previous hearing had been held in this matter on the question of the respondents' liability for medical benefits. This insurer (the Hartford) provided insurance coverage to the employer through October 26, 2007, including the time at which the claimant suffered the onset of her disability on June 15, 2005. Another carrier (Zurich) assumed coverage beginning on October 26, 2007. ALJ Mottram also presided over that hearing and on May 15, 2009 he issued an order finding that this insurer was liable for the medical benefits and dismissed Zurich from the case. The ALJ found that the claimant's condition when Zurich assumed the risk and after was merely the natural progression of the claimant's condition and that she did not suffer a substantial permanent aggravation subsequent to the onset of her disability. The ALJ therefore ordered that the Hartford was liable for the medical benefits.
The respondents appealed the May 15th order and we affirmed. The respondents appealed our order to the Colorado Court of Appeals, which had not issued an opinion by the time the briefs in this appeal were filed and the matter was transmitted to us. However, we note that on September 9, 2010 the court issued its opinion affirming our order. Klingener v. Industrial Claim Appeals Office, No. 09CA2278 (Colo. App. September 9, 2010) (not published pursuant to C.A.R. 35(f)). The court of appeals modified its decision on November 10, 2010 and denied the respondents' petition for rehearing.
I.
The respondents appealed the ALJ's order and argue generally that the award of temporary partial disability benefits to the claimant is not supported by the evidence or by the applicable law. We have reviewed the record and considered the respondents' arguments and we are unpersuaded that the ALJ committed reversible error or abused his discretion.
To prove entitlement to temporary disability the claimant must prove the industrial injury caused a "disability." § 8-42-103(1), C.R.S.; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); See also § 8-42-106, C.R.S. (in cases of temporary partial disability the employee receives sixty-six and two-thirds percent of the difference between employee's average weekly wage at the time of injury and the average weekly wage during the disability). Whether the claimant has proved a disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). The ALJ's factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993). We may only interfere with the ALJ's credibility determinations in extreme circumstances, such as where the record contains such hard, certain evidence that it would be error as a matter of law for any fact finder to reject the evidence. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). That is not the case here and we are not at liberty to disturb the ALJ's credibility determinations.
Here it is undisputed that effective in 2008 the claimant renegotiated her hours and her annual salary, reducing both the hours she was required to bill and her annual salary. The hearing officer found that she did so because of her occupational disease and that therefore the cause of her resultant partial wage loss was the effects of her compensable condition. This factual finding is amply supported by the claimant's testimony and by the medical restrictions imposed that limited her to 32 hours per week performing her job as a dental hygienist. Because the ALJ's dispositive factual findings are supported by substantial evidence, we must uphold them. Those dispositive findings, in turn, support the award of temporary partial disability benefits and we reject the respondents' arguments that the ALJ's order "is not supported by the facts or the law."
II.
The respondents also make several arguments in connection with their assertion that the ALJ erred in failing to hold Zurich liable for the claimant's temporary partial disability benefits. In this regard, the respondents argue that the ALJ erred in finding that the claimant did not sustain a substantial permanent aggravation during the period in which Zurich was the insurer. As we understand the respondents' argument, they argue that the evidence compelled the finding that the claimant's condition was substantially and permanently aggravated. We are unpersuaded by this argument.
Section 8-40-201(14), C.R.S., defines an occupational disease as one which results directly from the conditions under which work was performed, is a natural incident of the work, can fairly be traced to the employment as a proximate cause, and does not come from a hazard to which the worker would have been equally exposed outside of the employment. The question of whether a claimant has proven that a particular disease, or aggravation of a disease, was caused by a work-related hazard is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). Consequently, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.
Here, the respondents do not contest that the claimant suffers from an occupational disease. Rather, they dispute that they are liable for the indemnity benefits ordered by the ALJ. Where the claimant suffers an occupational disease and is exposed to the hazards of the disease during successive employments, or where successive insurers provide coverage, liability for the occupational disease is governed by the "last injurious exposure rule." Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo. App. 1995). Section 8-41-304(1), C.R.S., provides that the employer in whose employment the claimant was last "injuriously exposed" and suffered a substantial, permanent aggravation of the disease is solely liable for all compensation benefits due on account of the disease. The purpose of the rule is to relieve the claimant of the burden of trying to prove the exact contribution from multiple employments. Union Carbide Corp. v. Industrial Commission, supra.
In Monfort, Inc. v. Rangel 867 P.2d 122 (Colo. App. 1993), the court explained that the addition of the phrase "substantial permanent aggravation" to § 8-41-304(1) did not eliminate or change the last injurious exposure test for causation as interpreted in Union Carbide and Royal Globe v. Collins 723 P.2d 731 (Colo. 1986). Rather, the addition of that phrase to the statute imposing liability upon the last employer minimizes the harsh effects of that statute only to the extent that liability now is limited to those employers in whose employ there has been exposure to a harmful concentration of the hazard and the effect of such exposure is a substantial and permanent aggravation of the previous condition. The court further explained that under § 8-41-304(1), the length of the period of employment with a particular employer continues to be immaterial to a finding of liability. Instead, the focus now is on both the harmful nature of the concentration of the exposure and the magnitude of the effect of such exposure. Further, as under Royal Globe, the employee is not required to ascertain the exact amount that each employer contributed in causing his occupational disease. Nor is he or she required to pinpoint exactly which employer most injuriously exposed the claimant. Instead, the employee is allowed to recover from the last employer in whose employ the last injurious exposure occurred and resulted in an aggravation that is both permanent and substantial.
As with the question of the claimant's partial disability, the question whether there has been a substantial permanent aggravation is one of fact for determination by the ALJ. Monfort Inc. v. Rangel, supra. Consequently, as with the other factual findings, we must uphold the ALJ's resolution of this issue 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 the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here, the claimant's testimony amply supports the ALJ's factual finding that she did not sustain a substantial and permanent aggravation during the period when Zurich provided the insurance coverage. The ALJ could reasonably infer, as he did following the previous hearing, that the claimant's condition after October 2007, when Zurich was the insurer, was merely the natural progression of the claimant's disease and that her condition was not substantially or permanently aggravated by the work she did after that time.
The respondents also argue that the ALJ erred by "relying" on a previous order that he issued following a hearing held on April 14, 2009. However, contrary to the respondents' argument, we do not read the ALJ's order as having merely "adopted" his previous factual findings. It is true that in finding that the claimant had not suffered a substantial permanent aggravation of her condition the ALJ remarked that it was "as found previously." However, in our view, his finding here was based upon the evidence presented and not upon the previous proceeding or his previous order.
In this regard, the claimant moved at the outset of the hearing to introduce into evidence the transcript from the hearing held on April 14, 2009. Tr. at 26. The respondents objected and the claimant asserted that the transcript was relevant because she wished to argue that the law of the case doctrine applied regarding the ALJ's previous finding that there was no substantial permanent aggravation. Tr. at 28. (The parties and the ALJ were aware at that time that the respondents had appealed the ALJ's previous order and that at the time of the hearing that appeal had not been decided. As noted above, the court of appeals affirmed our order in an opinion issued on September 9, 2010 and modified on November 10, 2010.) The ALJ then denied the motion to admit the previous transcript, remarking that "I don't think it's something that the Court can rely on in issuing their decision in this case." Tr. at 30. Further, it is evident that the parties contemplated that the question of a possible substantial permanent aggravation was litigated and would be adjudicated at this proceeding. When asked whether he agreed that the issues for determination at the hearing were average weekly wage and temporary partial disability benefits, the respondents' counsel added that another issue was "who's responsible for paying temporary partial disability." The ALJ replied to the attorney's statement, "Certainly." Tr. at 10. Under these circumstances, we reject the respondents' argument that the ALJ "relied" upon his previous order in finding that there was no substantial, permanent aggravation.
The respondents also contend that the ALJ erred in denying the respondents' request to take the deposition of Dr. Silva following the close of the hearing. Several days prior to the hearing the respondents filed a written motion reciting that Dr. Silva's live testimony could not be arranged and seeking authorization to take his testimony by deposition following the hearing. The matter was resolved at the hearing, where the respondents' counsel conceded that they had elected not to subpoena the doctor's attendance, but rather had tried to "coordinate his attendance" through contacting his office. Tr. at 4. The attorney represented that they "need his testimony to prove substantial and permanent aggravation. . . ." Tr. at 4. The claimant opposed the motion and the ALJ denied it. Tr. at 6.
An ALJ may permit the taking of evidentiary depositions following the close of the hearing. Section 8-43-207(1)(j), C.R.S. authorizes ALJs to adjourn a hearing to a later date for the taking of additional evidence for good cause shown. However, the ALJs have wide discretion as to the conduct of evidentiary proceedings, including the decision of whether to permit the taking of post-hearing evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). Consequently, we may not interfere with the ALJ's determination in the absence of a clear 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 determination "exceeds the bounds of reason, as where it is contrary to law or unsupported by the evidence." Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo. App. 2001). In determining whether to permit the taking of post-hearing evidence, the ALJ may consider various factors including whether a party has exercised due diligence to obtain the evidence prior to the hearing, whether the evidence might be outcome determinative, and the potential inconvenience and expense to the opposing party if additional proceedings are permitted. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo. App. 1987). The ALJ's decision should also consider the parties' due process rights, including the right to present evidence and confront adverse evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo. App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo. App. 1990).
Here, we perceive no abuse of discretion. In denying the respondents' motion, the ALJ noted that he did not routinely require a subpoena as a prerequisite to a showing of good cause for a post-hearing deposition. However, in the absence of a subpoena the ALJ stated that a showing of "significant efforts" to secure the attendance of the witness were necessary. Tr. at 6. The ALJ concluded that the respondents' efforts in this case fell short of those required to show good cause for the necessity of a post-hearing deposition. The ALJ considered the relevant factors and weighed them, and did not abuse his discretion in denying the motion.
Finally, the respondents argue that the ALJ erred in not joining Zurich for the purposes of this hearing, and in granting the claimant's motion to amend the pleadings by correcting the W.C. number from the one in the claim against Zurich to the one in the claim against the Hartford. However, our review of both contentions is hampered by the absence of any argument in the respondents' brief aside from the mere assertions that error was committed in those respects. In general, when the error is not plain, we decline to attempt to deduce a party's arguments from a bald assertion of error. Such a practice requires us to speculate regarding the party's arguments and threatens to put us in the position of acting as surrogate counsel for that party.
Regarding the question of Zurich's presence, Zurich was not indispensable to this proceeding. Complete relief could have been, and apparently was, granted between the claimant and the Hartford and we fail to perceive any way in which Zurich's absence obstructed the ALJ's ability to resolve all matters before him. Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo. App. 1984). Although arguably the ALJ might have joined Zurich under the provisions permitting permissive joinder, see C.R.C.P. 20(a), that decision was discretionary with the ALJ. Sutterfield v. Arapahoe County District Court, 438 P.2d 236 240, 165 Colo. 225 (Colo. 1968). We perceive no basis for a determination that he abused his broad discretion in this respect.
Regarding the alleged error in correcting the W.C. number, the respondents have not alleged that they were surprised at the hearing that they would be litigating their liability under the claim against them rather than under the claim against Zurich. We have reviewed the record and it confirms that the respondents were at all times aware of the disputed issues, the parties, and the legal basis for the claims. Nor, as noted, have they alleged either surprise or prejudice in their brief. Under these circumstances, the ALJ did not abuse his discretion in correcting the W.C. number and proceeding with the hearing.
Insofar as the respondents have made other arguments, we have considered them and they do not persuade us to alter our resolution of this appeal.
IT IS THEREFORE ORDERED that the ALJ's order dated February 2, 2010, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
ABIGAIL TARR, 3256 E 4TH AVE, DURANGO, CO, (Claimant).
ELYSE KLINGENER, DMD, DURANGO, CO, (Employer).
HARTFORD FIRE INSURANCE CO, Attn: SCOTT TESSMER, C/O: LAW OFFICES OF SCOTT TESSMER, ENGLEWOOD, CO, (Insurer).
CRANE AND TEJADA, PC, Attn: BETHIAH BEALE CRANE, DURANGO, CO, (For Claimant).
THE HARTFORD, Attn: SHARON TAYLOR, HOUSTON, TX, (Other Party).