W.C. No. 4-394-982.Industrial Claim Appeals Office.
September 2, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied her petition to reopen and request for additional temporary disability and medical benefits. We affirm.
The claimant suffered a work-related injury on September 8, 1988, when she jumped backwards and twisted to get out of the way of a vehicle that was about to strike her in the parking lot of the employer’s store. The claimant did not miss any work as a result of the injury and the claimant was treated conservatively by Dr. Belleville for a low back strain.
In November 1998 Dr. Belleville placed the claimant at maximum medical improvement with no permanent impairment. In May 1999, the respondents filed a Final Admission of Liability for the payment of zero permanent disability benefits. The case was closed in December 1999, by an order of the Director of the Division of Workers’ Compensation.
In March 1999 the claimant complained of recurrent low back and neck pain. On April 10, 1999, Dr. Bender reported the claimant’s “x-rays revealed significant lumbar spondylosis,” which he opined was “consistent with the patient’s age, but not with the specific injury as described.” In August 2000 Dr. Sisson reported an MRI of the claimant’s lumbar spine “reveals moderate to marked L4-5 congenital spinal stenosis with some L5-S1 disc herniation below that.” Dr. Sisson diagnosed congenital lumbar spinal stenosis, and a herniated lumbar disc at L1-2 and L5-S1. Dr. Donner concurred and also diagnosed “severe cervical stenosis primarily at C5-6.” (Donner March 28, 2001).
In May 2001 Dr. Donner performed a three level fusion of the claimant’s cervical spine. Dr. Donner subsequently issued a report in which he opined the cervical surgery was not necessitated by the claimant’s employment. On July 8, 2002, Dr. Donner performed a multilevel decompressive laminectomies from L1 — S1 and a posterior fusion of the L1-2 level. Due to complications from the surgery, the claimant was hospitalized for several days.
The claimant petitioned to reopen the claim based on a worsening of her condition and requested temporary disability benefits commencing July 7, 2002. The ALJ determined the claimant failed to prove a worsening of her condition from the industrial injury. Instead, the ALJ found the claimant had a preexisting degenerative disc disease in her cervical and lumbar spine which became “temporarily symptomatic” as a result of the industrial injury. Crediting the opinions of Dr. Sisson, Dr. Bender, Dr. Belleville and Dr. Donner the ALJ also found the claimant returned to her baseline pre-injury status as of April 14, 1999. Further, the ALJ determined that the treatment rendered to the claimant after April 1999 was necessitated by the natural progression of the preexisting degenerative and congenital problems, not the industrial injury. Therefore, the ALJ denied the petition to reopen and request for additional benefits.
I.
On review, the claimant first contends the ALJ erroneously excluded Dr. Donner’s deposition which was taken in the District Court action against the driver of the vehicle who almost ran into the claimant. The claimant concedes the respondents had no advance notice of deposition. (Tr. p. 7). However, the claimant asserts that because Dr. Donner was subject to cross-examination by an attorney for the insurance carrier of the defendant driver, whose interests were the same as those of the respondents, good cause exists for admitting the deposition.
The ALJ determined the interests of the respondents were not identical to the interests of the driver’s insurer. Further, the ALJ implicitly found the respondents’ due process rights were implicated by their lack of notice to attend the deposition. Therefore, the ALJ sustained the respondents’ objection to admission of the deposition. We perceive no basis to disturb the ALJ’s ruling.
Section 8-43-210, C.R.S. 2002, provides that “depositions may be substituted for testimony upon good cause shown.” See also Rules of Procedure, Part VIII(I)(2), 7 Code Colo. Reg. 1101-3 at 30 (evidentiary deposition may be filed at the formal hearing). Whether the claimant has established good cause for the filing of a deposition is a discretionary determination for the ALJ. See Dee Enterprises v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2040, July 31, 2003) (ALJ has wide discretion in conduct of evidentiary proceedings). Consequently, we may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). The standard for an abuse of discretion is whether the ruling is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993).
However, we understand § 8-43-210 as referring to the “substitution” of “depositions” which have been taken in the workers’ compensation proceeding itself pursuant to the Rules of Procedure Part VIII(E)(2)(b), 7 Code Colo. Reg. 1101-3 at 27, or otherwise ordered by an ALJ. The statute does not contemplate substitution of depositions taken in other
proceedings based on a mere “good cause” standard. This is true because the rules governing depositions in workers’ compensation cases contemplate notice to the parties and the consequent opportunity to examine the witness. Rule VIII(E)(2)(b). Rather § 8-43-210 provides that the Colorado Rules of Evidence (C.R.E.) and the requirements of proof in civil nonjury cases shall apply to workers’ compensation hearings. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501
(Colo.App. 1995). Thus, a deposition taken outside the workers’ compensation proceeding is admissible in a workers’ compensation hearing if it is admissible under the C.R.E.
In a workers’ compensation case a deposition taken in some other proceedings is “hearsay” evidence because it is a statement other than one made by the declarant while testifying at the hearing, which is offered for the truth of the matter asserted. C.R.E. 801. C.R.E. 802 prohibits the admission of hearsay evidence unless it qualifies under one of the enumerated exceptions. C.R.E 804(b)(1) provides that former testimony of a witness taken in a deposition is not hearsay if the deposition is:
“taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.”
However, this exception applies only where the declarant is unavailable because he persists in refusing to testify, is unable to be present, or the proponent of his statement has been unable to procure his attendance. See C.R.E. 804(a)(1) through (5); A. Larson, Larson’s Workers Compensation Law, § 127.06(2) (2003).
Here, the claimant did not allege, and there is no evidence or finding that Dr. Donner was “unavailable” to testify at the workers’ compensation hearing. Accordingly, the claimant failed to establish the threshold proof required to substitute Dr. Donner’s deposition for live testimony. It follows the ALJ correctly excluded the deposition because it is not the type of deposition testimony which is admissible under the “good cause” standard of § 8-43-210.
The claimant’s reliance on our holding in Johnson-Reynolds v. Virtual Industries, W.C. No. 4-266-253 (July 23, 1999) is misplaced. Unlike the facts presented here, Johnson- Reynolds involved the admission of an evidentiary deposition taken in the workers’ compensation hearing after advance notice to all the parties.
II.
The claimant also renews her contention that the cervical and lumbar surgeries were reasonably necessary to relieve a worsening of her condition from the industrial injury. Consequently, she argues the ALJ erroneously denied the petition to reopen. We disagree.
When seeking to reopen based on a change in condition, the claimant must prove a change in the condition of the original compensable injury or a change in the claimant’s physical or mental condition which can be causally connected to the original injury. Section § 8-43-303(1), C.R.S. 2002, Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). Because the power to reopen is discretionary, we may not interfere with the ALJ’s determination of the issue unless there has been fraud or a clear abuse of discretion. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The determination of which of two possible causes is responsible for a claimant’s disability and need for treatment is one of fact for determination by the ALJ. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Admittedly, there is no requirement that causation be proven by medical evidence, and the claimant’s testimony may be sufficient to permit a finding that a particular condition was caused by the industrial injury See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). However, it is also true that where medical evidence pertaining to causation is presented, it is for the ALJ to assess its weight and credibility Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s arguments notwithstanding, there is substantial evidence in the medical reports of Dr. Belleville, Dr. Bender, Dr. Sisson and Dr. Donner to support the ALJ’s finding that the worsening of the claimant’s condition is attributable to a progression of the claimant’s preexisting, non-industrial degenerative disc disease and not the industrial injury. Their opinions are buttressed by X-rays and MRI test results of the claimant’s cervical and lumbar spine. Thus, we must uphold the ALJ’s finding that the claimant failed to prove a causal connection between the industrial injury and the worsened condition and, it is immaterial the claimant’s testimony, if credited, might support a contrary conclusion. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences). Furthermore, the ALJ’s findings support the conclusion the claimant failed to establish grounds to reopen the claim. See § 8-43-303.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 6, 2003, 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. 2002. 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 September 2, 2003 to the following parties:
Susan D. Young, 3407 Butternut Dr., Loveland, CO 80538
King Soopers, Inc., P. O. Box 5567, Denver, CO 80217-5567
The Kroger Company, c/o Chris Matchett, Sedgwick CMS, Inc., P. O. Box 5567, Denver, CO 80217-5567
Francis K. Culkin, Esq., 1120 Lincoln St., #711, Denver, CO 80203 (For Claimant)
Kent D. Enwright, Esq., 1799 Pennsylvania St., Denver, CO 80203 (For Respondents)
BY: A. Hurtado