W.C. No. 4-386-611.Industrial Claim Appeals Office.
June 6, 2002.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) insofar as the ALJ determined the claimant is permanently and totally disabled. We affirm.
In 1998, the claimant suffered compensable injuries to her upper extremities. As a result of the injuries, the claimant developed reflex sympathetic dystrophy (RSD) and depression.
On June 22, 2000, Dr. Anderson-Oeser placed the claimant at maximum medical improvement (MMI) and assigned a 34 percent whole person impairment rating. On August 2, 2000, the respondents filed a final admission of liability which listed MMI as June 22, 2000, and admitted liability for permanent partial disability benefits consistent with Dr. Oeser’s rating. The claimant objected and requested a hearing on permanent total disability.
Dr. Oeser also referred the claimant to Dr. Kimata for management of her prescription medications. During his deposition testimony on November 17, 2000, Dr. Kimata opined the claimant was not at MMI.
At the commencement of a hearing on December 12, 2000, the respondents petitioned to reopen the claim on grounds of mistake. The respondents argued the adjuster for the respondent-insurer mistakenly believed the claimant was at MMI until receipt of Dr. Kimata’s deposition on December 1, 2000. Therefore, the respondents contend they erred in filing a final admission of liability instead of seeking a DIME on the issue of MMI. Alternatively, the respondents requested a continuance to obtain a DIME.
The claimant objected to the continuance on grounds the respondents took no action to reopen the claim during the month following Dr. Kimata’s deposition. The claimant also argued she was prepared to proceed on the issue of permanent total disability and had expensive expert witnesses present to testify. (Tr. p. 8).
Dr. Oeser testified he referred the claimant to Dr. Kimata for maintenance treatment only and that the claimant’s condition remained at baseline throughout the four months the claimant had treated with Dr. Kimata. (Tr. p. 15). Therefore, Dr. Oeser renewed his opinion the claimant was at MMI. (Tr. p. 21).
Relying on Dr. Oeser’s testimony, the ALJ found no error or mistake. (Tr. p. 28). Therefore, the ALJ denied the petition to reopen. Furthermore, the ALJ found the respondents had notice of Dr. Kimata’s testimony for a month and took no action to request a continuance. Therefore, the ALJ denied the request for a continuance.
On the issue of permanent total disability the ALJ found that as a result of the industrial injury the claimant has limited attention span, limited patience, and suffers cognitive difficulties including confusion, and frequent forgetfulness. The ALJ also found the RSD causes the claimant to experience constant pain which is exacerbated by emotional stress, and overstimulation.
Crediting the opinions of vocational rehabilitation expert, David Zierk (Zierk) over the contrary opinions of Ruthe Hannigan (Hannigan), the ALJ found the residual effects of the industrial injury render the claimant incapable of earning wages. Further, the ALJ found it likely the claimant would miss at least three days of work per month due to chronic pain from the industrial injuries. Therefore, the ALJ awarded permanent and total disability benefits commencing June 22, 2000.
I. A.
Relying on the deposition testimony of Dr. Kimata, the respondents contend the claimant is not at MMI. Further, the respondents contend the ALJ abused her discretion in refusing to reopen the claim or grant a continuance for the respondents to obtain a DIME on the issue of MMI. We disagree.
Under § 8-43-303(1)(a), C.R.S. 2001, an ALJ may reopen any award on the grounds of error or mistake. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Because the power to reopen is “permissive,” we may not interfere with the ALJ’s order unless it constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; Osborne v. Industrial Commission, 725 P.2d 63
(Colo.App. 1986).
The standard on review of an alleged abuse of discretion is whether, under the totality of 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). In applying this standard, it is proper to consider whether the ALJ’s order is supported by the record and applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The respondents’ request to litigate the issue of MMI inherently reflects an assertion that Dr. Oeser incorrectly placed the claimant at MMI. However, we reject the respondents’ contention the ALJ erroneously concluded the respondents were alleging a “mistake” by Dr. Oeser. As we read the ALJ’s oral ruling, the ALJ found that Dr. Oeser maintained his opinion the claimant reached MMI in June 2000 and that all further treatment was designed to maintain the claimant’s condition. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Further, the ALJ determined that Dr. Kimata’s interpretation of the referral from Dr. Oeser and his opinion the claimant was not at MMI reflected of a difference of medical opinions. Insofar as the respondents disagreed with Dr. Oeser’s opinion, the ALJ determined the respondents were free to request a DIME instead of filing a final admission of liability. However, Dr. Kimata’s later stated opinions, which persuaded the respondents to change their position on the issue of MMI did not establish a mistake within the meaning of § 8-43-303. Because the respondents voluntarily elected to admit the claimant reached MMI instead of challenging Dr. Oeser’s opinion, we cannot say the ALJ abused her discretion in finding there was no mistake which justified reopening the claim. (Tr. p. 22); see Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Klosterman v. Industrial Commission, 694 P.2d 873
(Colo.App. 1984) (failure to pursue administrative review may be a factor in determining whether the alleged mistake is the type of mistake which justifies reopening).
B.
Section 8-43-207(1)(j), C.R.S. 2001, and the Rules of Procedure, Part VIII(J),7 Code Colo. Reg. 1101-3, at 27, allow an ALJ to continue a hearing to a later date upon a showing of “good cause” by the party seeking the continuance. In determining whether to grant a continuance, the ALJ should consider “the circumstances of the particular case, weighing the rights of the party requesting the continuance to a fair hearing against the prejudice that may result from delay.” Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993). Where, as here, a party seeks a delay to present additional evidence, the ALJ may consider whether the party used due diligence to obtain the evidence prior to the hearing. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991).
The ALJ is vested with wide discretion in determining whether “good cause” has been established. Accordingly, we may not disturb the ALJ’s order denying the motion for continuance in the absence of a clear showing of an abuse of discretion. Cherry Creek School District #5 v. Voelker, supra; Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
We agree with the claimant that regardless of when Dr. Kimata’s deposition was prepared, the respondents knew as of November 17, 2000 that Dr. Kimata did not consider the claimant to be at MMI. Nevertheless, the respondents took no action to reopen the claim for the purpose of obtaining a DIME until the commencement of the hearing on December 12, 2000. Under these circumstances, the ALJ’s order denying the continuance does not exceed the bounds of reason.
We also note that because the ALJ refused to reopen the claim, the respondents are precluded from obtaining a DIME to contest Dr. Oeser’s finding of MMI. Accordingly, a continuance, even if granted, would not have allowed the respondents to obtain the requested relief.
II.
The respondents remaining arguments challenge the sufficiency of the evidence supporting ALJ’s findings of fact. We perceive no reversible error.
Under the applicable law permanent total disability exists where the claimant in unable earn “any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2001; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is incapable of earning wages in the same or other employment may be based upon the ALJ’s consideration of a number of “human factors.”Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perfor . Weld County School District RE-12 v. Bymer, 955 P.2d 550
(Colo. 1998). The test for determining the “availability of work” is whether employment exists “that is reasonably available to the claimant under his or her particular circumstances.” Id. at 558. We must uphold the ALJ’s factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001; Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).
The respondents’ arguments notwithstanding, the claimant’s testimony supports the ALJ’s finding the claimant has difficulty walking more than 1 or 2 blocks and must hold her hands up to avoid pain in her upper extremities. Insofar as the record contains conflicting evidence, we substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the claimant’s testimony on this issue. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Next, the respondents contend there is no evidence to support the ALJ’s finding that the claimant’s cognitive difficulties are attributable to the RSD. Rather, the respondents contend the claimant’s symptoms are the result of side affects from her medications. Furthermore, because Dr. Kimata testified he is still adjusting the type and dosage of the claimant’s medications, the respondents contend the ALJ erred in finding the claimant’s cognitive difficulties constitute a permanent impediment to her ability to earn wages. We disagree.
The record contains evidence that as a result of the RSD the claimant is required to take pain medications which impair her concentration and memory. (Tr. pp. 64, 65, 137, 236). Dr. Kimata’s belief that adjustments to the claimant’s medication my improve her cognitive functioning is immaterial because in the absence of a DIME, the ALJ was bound by Dr. Oeser’s finding of MMI. See Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). Consequently, the ALJ did not err in finding the claimant’s cognitive difficulties are a permanent impediment to earning wages. In any event, if the claimant’s condition improves, the respondents may then petition to reopen.
The respondents also contest the ALJ’s finding that the claimant’s inability to get out of bed 3 days per month precludes the claimant from earning wages. The respondents argue the ALJ’s finding mistakenly assumes the 3 days of incapacity would fall on the claimant’s scheduled work days.
The record contains medical evidence there is no way to predict the days the claimant will be incapacitated during the month. (Tr. pp. 163, 190). Because the incapacity is random, the ALJ could, and did reasonably infer that the incapacity may occasionally occur on a day the claimant is scheduled to work.
Further, Zierk concluded that the claimant’s pain and fatigue symptoms “seriously challenged” the claimant’s ability to satisfy an employer’s “reasonable expectation for reliability and dependability.” (Zierk page 12). Even vocational expert Hannigan admitted she didn’t know many employers that would permanently tolerate an employee that came in only when they felt good. (Tr. p. 320). Consequently, the record supports the ALJ’s implicit determination that the random incapacity contributed to the claimant’s inability to earn wages.
Finally, the respondents point out that Zierk did not offer any live testimony. Consequently, the respondents contend the ALJ erred insofar as she purported to credit Zierk’s “testimony.”
Admittedly, Zierk did not “testify” at the hearing. However, Zierk prepared a written report dated October 18, 2000, in which he opined the claimant is incapable of becoming employed and earning wages in her local labor market. The ALJ was obviously persuaded by Zierk’s opinions, and an ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Under the circumstances here, the ALJ’s reference to “testimony” is nothing more than harmless error.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 18, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2001. 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 June 6, 2002 to the following parties:
Elizabeth Hackett, 5262 E. 123rd Court, Thornton, CO 80241
Vencor — Castle Garden Care Center, 401 Malley Dr., Northglenn, CO 80233-2024
Myra Jelinek, Constitution State Service Company/American International Insurance Risk, P. O. Box 173762, Denver, CO 80217-3762
William C. Jolliffe, Esq., 2280 S. Xanadu Way, #200, Aurora, CO 80014 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado