Opinion
W.C. No. 4-791-626.
August 3, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated February 2, 2011, that denied and dismissed the claim for additional permanent impairment benefits. We affirm.
The claimant suffered an admitted injury on January 29, 2009. The claimant reported that she felt a pop in her low back while lifting a patient. Dr. Krebs placed the claimant at maximum medical improvement (MMI) on September 15, 2009. Dr. Krebs noted he reviewed an old impairment rating of three percent whole person impairment provided by Dr. McLaughlin for a prior July 7, 2003 injury. Dr. Krebs provided the claimant with a three percent whole person impairment rating and opined that this was the same three percent impairment provided by Dr. McLaughlin in his May 2004 impairment rating.
The respondents filed a final admission of liability (FAL) admitting for a three percent whole person impairment rating. The claimant objected to the FAL and requested a Division Independent Medical Examination (DIME). The DIME physician agreed that the claimant was at MMI and provided the claimant with a rating of zero percent whole person impairment for the recurrence of her chronic pain disorder.
The matter went to hearing on the issue of whether the claimant overcame by clear and convincing evidence the DIME physician's opinion that the claimant had a zero percent whole person impairment rating. The ALJ concluded that the claimant had failed to demonstrate it was likely true and free from substantial doubt that the DIME physician's opinion was incorrect. Therefore, the ALJ denied and dismissed the claim for additional permanent impairment benefits. The claimant brings this appeal.
I.
The claimant first contends that the ALJ erred in failing to admit a new treating physician's report into evidence after the hearing. We are not persuaded that the ALJ abused his discretion.
The matter was heard before the ALJ on September 28, 2010. Post-hearing depositions were allowed. The deposition of Dr. Krebs was taken on October 27, 2010. The claimant contends that on November 17, 2010, after the deposition of Dr. Krebs, she saw Dr. Krebs for follow-up treatment. Dr. Krebs sent claimant's counsel a report based upon the November 17, 2010 examination. The claimant contends the report was issued by Dr. Krebs on his own volition and was unsolicited. In the November 2010 report, Dr. Krebs expressed the opinion that the claimant had a 24 percent combined whole person impairment as well as a five percent sacroiliac joint dysfunction. The claimant filed a Motion to Reopen Evidentiary Record to Supplement the Deposition of Dr. Krebs with the new report, which the claimant argued directly rebutted Dr. Krebs' deposition testimony, particularly on the issue of the claimant's impairment rating.
The respondents objected to the Motion to Reopen the Evidentiary Record. Respondents noted that, before the September 28, 2010 hearing, the claimant had not seen Dr. Krebs since September 2009, but then saw him on November 17, 2010, more than a month after the hearing and after the physician's deposition had been taken. The respondents cited several due process concerns over allowing the report into evidence.
The ALJ entered an order dated December 13, 2010, determining that the evidence was closed with the completion of the depositions and denying the claimant's motion. The ALJ's order provided that the record would remain open only for the filing of position statements.
On appeal the claimant contends that the ALJ summarily denied her request to admit Dr. Krebs' new report as post-hearing evidence. The claimant asserts that the ALJ's order did not analyze any of the factors that are to be considered when ruling on a motion for post-hearing evidence.
Section 8-43-301(8), C.R.S., authorizes us to disturb the ALJ's order if the ALJ's findings of fact are insufficient to permit appellate review. However, 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).
In addition, 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.; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).
Parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). However, in cases where additional evidence was proffered after the apparent conclusion of the proceedings, the Panel has sought guidance from cases involving motions for a new trial due to newly discovered evidence. The factors the courts examine in deciding whether to allow additional evidence are whether the requesting party could not, with reasonable diligence, have discovered and produced the evidence at issue at the first hearing, whether the evidence was material to the issue in first trial, and whether the evidence, if admitted, would probably change result of first trial. The courts have noted that these factors are not discrete items that lend themselves to mechanistic application, but rather are closely interrelated and require exercise of prudential judgment informed primarily by considerations of fundamental fairness to the litigants. See Aspen Skiing Company v. Peer, 804 P.2d 166, 172 (Colo. 1991). Of course, the ALJ must 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).
We first note that the claimant argued in her Motion to Reopen the Evidentiary Record that Dr. Krebs in his new report discussed his deposition testimony and corrected his opinion to increase the impairment rating he gave to the claimant. Therefore, this case does not appear to be one in which there is a new medical diagnosis of the claimant's condition that could not previously have been discovered. Rather, it appears to be mostly an opinion of the correct application of the AMA Guides if the claimant were found to have sustained an injury that the ALJ essentially found she did not.
Assuming that the report from Dr. Krebs was material, we also examine the other factors and note the following. At the time of the September 28, 2010 hearing, the claimant had the opportunity to and did submit extensive records from Dr. Krebs. Exhibit 1. This was the first opportunity for the claimant to present evidence of Dr. Krebs' opinions. Further, the parties were allowed to take post-hearing depositions of three physicians. Tr. at 41. The claimant presented the testimony of Dr. Krebs in a deposition taken on October 27, 2010. This was the second opportunity for the claimant to present the opinions of Dr. Krebs. In his deposition, Dr. Krebs was unwilling to amend his impairment rating. Krebs Depo. at 23-14. The ALJ, in reviewing the transcript of that deposition, found that Dr. Krebs testified he agreed with the opinion set forth in the report from the DIME physician. Krebs Depo. at 27-28. Under these circumstances, we are not persuaded that the ALJ was compelled to conclude that the claimant could not, with reasonable diligence, have discovered and produced other relevant opinions from Dr. Krebs at the time of the hearing or at the time of the deposition.
Nor are we persuaded that the ALJ was compelled to conclude that the new report from Dr. Krebs would probably change the ALJ's determination. The claimant carried a heavy burden because the DIME physician's medical impairment rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. In coming to the conclusion that the claimant had failed to meet that burden, the ALJ relied upon various parts of the evidentiary record, not just the opinions of Dr. Krebs. The ALJ had found the opinions expressed by the DIME physician in his report and later in his testimony to be both credible and persuasive. The ALJ found the claimant's testimony was not credible and relied upon medical reports involving prior injuries. Further, the ALJ found the testimony of Dr. Krebs, at his deposition, to be credible and persuasive. Even if the new medical report were considered, the ALJ would not be required to find that it changed his original opinion or that it outweighed his original opinion. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony).
Under section 8-43-207(1), C.R.S., "the ALJ is vested with wide discretion in the conduct of evidentiary proceedings." In applying the abuse of discretion standard to the ALJ's evidentiary ruling, we cannot say the ALJ's order to deny consideration of the new report by Dr. Krebs is beyond the bounds of reason. See Ortega v. Indutrial Claim Appeals Office, 207 P.3d 895, 897 (Colo. App. 2009); Eller v. Industrial Claim Appeals Office, 224 P.3d 397, (Colo. App. 2009); Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, 222 (Colo. App. 2008).
II.
The claimant next contends that the ALJ erred in finding that the claimant did not overcome by clear and convincing evidence the opinion of the DIME physician that the claimant had a zero percent whole person impairment rating. "Clear and convincing evidence" is evidence which proves it is "highly probable" the DIME physician's opinion is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003).
The claimant relies principally upon the new report from Dr. Krebs as demonstrating the opinion of the DIME physician had been overcome. However, we have concluded that the ALJ did not commit reversible error in refusing to accept this new report into evidence. In any event, the question of whether the DIME physician's rating has been overcome by "clear and convincing evidence" is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Metro Moving Storage Co. v. Gussert, supra. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Id.
In our view, the ALJ's determination is supported by substantial evidence in the record. This evidence includes the opinions expressed by the DIME physician in his report and later in his testimony, which the ALJ found to be both credible and persuasive. Further, the ALJ relied upon medical reports of prior injuries which support his decision. The ALJ specifically noted Dr. McLaughlin's impairment rating report of 2004. Exhibit 10. The ALJ also found the claimant's testimony was not credible. Finally, the reports from Dr. Krebs submitted at the hearing and the testimony of Dr. Krebs support the ALJ's determination. Because the ALJ's findings of fact are supported by substantial evidence in the record, we are bound by them. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ's order dated February 2, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
TERRIE GREEN, P O BOX 4, CEDAREDGE, CO, (Claimant).
COLOROW HEALTH CARE CENTER, LLC, OLATHE, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
KILLIAN DAVIS, PC, Attn: CHRISTOPHER RICHTER, ESQ./J. KEITH KILLIAN, ESQ., GRAND JUNCTION, CO, (For Claimant).
RUEGSEGGER SIMON SMITH STERN, LLC, Attn: KENT YARBROUGH, ESQ., DENVER, CO, (For Respondents).