W.C. No. 4-607-279.Industrial Claim Appeals Office.
March 20, 2007.
FINAL ORDER
The respondents seeks review of an order of Administrative Law Judge Henk (ALJ) dated September 28, 2006 that reopened the claim and awarded ongoing temporary total disability benefits. We affirm.
This matter went to hearing before the ALJ to determine whether to reopen the claim and award temporary total disability benefits. The record reveals the following procedural history. The parties submitted exhibits into evidence. The claimant’s exhibits included a medical report from Dr. Hughes in support of his petition to reopen the claim. Exhibit 1. The claimant provided fairly brief testimony, after which the parties agreed to present position statements by July 10th. Tr. at 13-14. The ALJ subsequently issued a procedural order on August 16, 2006. The ALJ stated that a review of the evidence revealed that page five of Dr. Hughes’ report was missing. The ALJ ordered that the record be held open until August 23, 2006 for the submission of the missing page. The claimant’s counsel submitted the missing page of Dr. Hughes’ report to the ALJ on August 22, 2006 by facsimile transmission. That same day the respondents’ counsel mailed an objection to the ALJ’s procedural order. The respondent’s counsel stated in the objection that, prior to the submission of the position statements, he had contacted the Office of Administrative Courts to ascertain whether the missing page five had been submitted. Being advised in the negative, he submitted his position statement. He asserted that it was improper for the ALJ to consider the missing page without the claimant first establishing good cause for offering untimely evidence. He further asserted that the ALJ’s action of ordering the production of
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the missing page of the medical report may constitute an abuse of discretion. The respondents requested that the ALJ set aside her procedural order.
The ALJ entered her Findings of Fact, Conclusions of Law, and Order (Order). She addressed as a preliminary matter the respondents’ objections to the inclusion of the missing page of Dr. Hughes’ report. She determined that the claimant intended to rely on the report, but inadvertently omitted the missing page when submitting the report at the hearing. She cited § 8-43-207(1)(j), C.R.S. 2006, in support of her action, which authorizes the ALJ, “[u]pon good cause shown, to adjourn any hearing to a later date for the taking of additional evidence.” The ALJ also considered page five of the report to be cumulative evidence, which did not affect her decision. The ALJ found the opinions of Dr. Hughes and the claimant’s treating physician, Dr. Olsen, to be credible and persuasive and ordered that the claim be reopened and that temporary total disability benefits be awarded.
On appeal the respondents assert that the ALJ’s order is insufficient for our review based on the ALJ’s treatment of Dr. Hughes’ report. Section 8-43-301(8), C.R.S. 2006, 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. 2006; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
The respondents do not question the ALJ’s finding that the page was omitted due to a clerical error, but argue that the ALJ was required to determine whether the claimant exercised reasonable diligence in tendering the document before she is entitled to allow the introduction of the missing page of the report. The decision to allow additional evidence may involve the determination of whether the requesting party could not, with reasonable diligence, have discovered and produced the evidence at issue at the first hearing. See Aspen Skiing Company v. Peer, 804 P.2d 166, 172 (Colo. 1991) (motion for new trial due to newly discovered evidence applies three-part test). However, the order to produce the missing page resulted from the ALJ’s own action, rather than from a motion by the claimant. We therefore consider the respondents’ argument to be inapposite to the case at hand.
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Of course, the ALJ’s decision 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). The respondents argue that the ALJ violated due process requirements by accepting the missing page of Dr. Hughes’ report without conducting further evidentiary proceedings. However, in this case, the ALJ determined that the information gleaned from the missing page of the report was cumulative and therefore had no effect on her ultimate rulings. We do not disagree with the ALJ’s determination that the disputed documents are cumulative and the ALJ’s error, if any, in admitting them was harmless. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded). Accordingly, we find no prejudicial error as a result of there not being additional proceedings Cf. Potomac Insurance Company v. Industrial Commission, 744 P.2d 765, 767 (Colo.App. 1987) (decision of whether additional evidence needed within hearing officer’s discretion, but further hearing required if such evidence might affect outcome of claim).
The respondents also assert that Dr. Hughes’ report, without considering the subsequently introduced page five, does not support the ALJ’s determination that Dr. Hughes’ persuasively opined that the claimant is no longer at maximum medical improvement and needs additional treatment. Order at 6 (unpaginated), ¶ 4. We disagree. On page six of his report, Dr. Hughes’ states that the claimant “no longer has stability of his medical condition” in accordance with the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised. He noted that the claimant’s impairment increased more than three percent within one year of his impairment rating. Dr. Hughes opined that additional treatment, including “facet joint rhizotomy” treatment, would return the claimant to maximum medical improvement. The ALJ specifically credited these portions of the report. Order at 4 (unpaginated), ¶ 4. Dr. Hughes also concurred with certain recommendations by Dr. Olsen, who the ALJ also found to be credible and persuasive as to his opinion that certain treatment will reduce pain and improve the claimant’s ability to function. Order at 5 (unpaginated), ¶ 7. The ALJ’s corresponding findings are supported by Dr. Olsen’s report dated October 7, 2005. Exhibit 2.
Furthermore, the ALJ credited the claimant’s testimony and found that the claimant was then experiencing pain. Order at 4 (unpaginated), ¶ 8. The claimant testified that his symptoms had become worse after being placed at maximum medical improvement. Tr. at 9. He stated that he experienced burning and hurting sensations at the time of being placed at maximum medical improvement and felt pain he described as a “poker” that extended from his buttocks to his foot, which continued further down his leg than before. He also stated that his right leg gave out due to pain. Tr. at 10, 12. The ALJ’s findings in support of her
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conclusion that the claim should be reopened due to a worsened condition are supported by substantial evidence and binding on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 28, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Curt Kriksciun
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Liberty Mutual Group, Mary Anders, Irving, TX, Eley Galloway, Clifford L. Eley, Esq., Denver, CO, (For Claimant).
Zarlengo, Mott, Zarlengo, and Winbourne, P.C., Scott M. Busser, Esq., Denver, CO, (For Respondents).
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