IN THE MATTER OF THE CLAIM OF TAHAR FILALI-MOUTEI, Claimant, v. KING SOOPERS, INC., Employer, and SELF INSURED, Respondent.

W.C. No. 4-727-455.Industrial Claim Appeals Office.
January 12, 2010.

FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) dated August 10, 2009, that ordered payment of permanent total disability (PTD) benefits. We affirm.

The claimant sustained an admitted low back injury on May 14, 2007. The only issue for determination at the hearing was the claimant’s entitlement to PTD benefits. The ALJ credited the claimant’s vocational expert who testified that the claimant was unable to earn wages in the Denver labor market due to his disabilities. The ALJ specifically found the testimony of the claimant’s expert to be more persuasive than the testimony of the respondent’s vocational expert. The ALJ concluded that the claimant had established by a preponderance of the evidence that he was unable to obtain employment and earn a wage. The ALJ therefore awarded PTD benefits.

The respondent contends that the ALJ erred as a matter of law in allowing testimony to be presented by the claimant’s vocational rehabilitation expert or at least erred in permitting the scope of the expert’s testimony on rebuttal. The respondent contends by crediting such testimony, the respondent’s ability to defend the claim was prejudiced and the ALJ erred in concluding that the claimant was entitled to PTD benefits.

Under section 8-43-207(1), C.R.S. 2009, “the ALJ is vested with wide discretion in the conduct of evidentiary proceedings.”Ortega v. Indus. Claim Appeals Office, 207 P.3d 895, 897 (Colo. App. 2009); see Eller v. Indus. Claim Appeals Office, ___ P.3d ___, ___ (Colo. App. No. 08CA2274, Sept. 3, 2009) (applying an abuse of discretion standard to evidentiary rulings) Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220, 222

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(Colo. App. 2008) (an abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law).

Here at the inception of the July 1, 2009 hearing the claimant attempted to enter into evidence an employability evaluation dated May 6, 2009 authored by his vocational expert. The respondent objected on the ground that the report had not been provided to it by the claimant twenty days prior to the hearing. Tr. (7/1/2009) at 4. In addition, the respondent objected to the consideration of the report because the claimant had not, in response to a discovery request, identified the vocational expert as a witness. The ALJ ruled that the vocational evaluation would not be admitted into evidence. Tr. (7/1/2009) at 4. The twenty-day rule in § 8-43-210, C.R.S. 2009 requires that all relevant medical records, vocational reports, expert witness reports, and employer records shall be exchanged with all other parties at least twenty days prior to the hearing date. Se Ortega v. Industrial Claim Appeals Office of State 207 P.3d 895 (Colo. App. 2009) (exceptions to the twenty-day rule are clearly contemplated by the allowance of continuances to file additional reports in appropriate circumstances).

The respondent also objected to the admission of any testimony from the vocational expert. Tr. (7/1/2009) at 4-6. The respondent argued it would be prejudiced to be forced to cross-examine the claimant’s expert without any prior knowledge as to her report or any response to its discovery request to identify and provide a summary of the expert’s expected testimony. In response to the ALJ’s question of why the claimant had not identified the expert or provided a summary of her testimony the claimant stated that it had been inadvertently omitted. The ALJ ruled that the vocational expert would not be allowed to testify. Tr. (7/1/2009) at 7. However, the ALJ ruled that the claimant’s vocational expert would be allowed to testify in rebuttal although not in the claimant’s case in chief. Tr. (7/1/2009) at 7.

After testimony was taken from the claimant at the July 1, 2009 hearing, the matter had to be continued to July 20, 2009. At the time of the second day of hearing, the respondent presented its vocational expert who expressed the opinion that the claimant was capable of returning to work. Tr. (7/20/2009) at 5. The claimant then called his vocational expert as a rebuttal witness. Tr. (7/20/2009) at 39. At that time, the claimant again offered the vocational report of his expert to shorten the expected testimony and the respondent again objected. Tr. (7/20/2009) at 39-40. The ALJ sustained the respondent’s objection. The claimant’s expert testified generally criticizing the opinions of the respondent’s expert. The claimant’s expert testified that the opposing expert had not taken into account the claimant’s work restrictions and the claimant was not capable of performing the work identified by the respondent’s expert. Tr. (7/20/2009) at 42-51. The claimant’s expert testified without objection, that in her opinion the claimant was not able to earn any wages at all. Tr. (7/20/2009) at 51-52.

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Here the ALJ imposed certain sanctions against the claimant for failing to reveal the identity and expected testimony of his vocational expert. The ALJ refused to allow the expert’s report into evidence or allow her to testify in the claimant’s case in chief. An ALJ’s discovery decisions must be upheld unless an abuse of discretion occurred. See Shafer Commercial Seating, Inc. v. Indus. Claim Appeals Office, 85 P.3d 619, 621 (Colo. App. 2003) (ALJ may rule on discovery matters and impose sanctions; decisions “[w]hether to impose sanctions and the nature of the sanctions to be imposed are matters within the fact finder’s discretion”). In our opinion those sanctions were well within the ALJ’s discretionary powers.

Essentially the respondent argues that by allowing rebuttal testimony by the claimant’s expert the ALJ allowed the claimant to circumvent the effects of the discovery sanctions. The admission of rebuttal testimony is within the sound discretion of the fact-finder and will not be disturbed absent an abuse of that discretion. In re Marriage of Antuna 8 P.3d 589 (Colo. App. 2000) (trial court did not err in allowing wife to present rebuttal testimony concerning the sales of homes in Highlands Ranch because she did not timely disclose that expert). The general rule is that the claimant in rebuttal is confined to evidence in reply to that of his opponent; but the court has the power to permit original testimony to be given. Beach v. Schroeder 47
Colo. 312, 107 P. 271 (Colo. 1910). While courts seldom permit parties, when giving evidence in rebuttal, to introduce that which ought to have been placed before the fact finder when they were making out their own side of the case, yet a departure from this rule is not reversible error, unless it appears to be a great abuse of discretion, and the other party was prejudiced thereby. Beach v. Schroeder supra.

Here the respondent, because of the continuance, had additional time to prepare for the testimony of the claimant’s expert at the second day of the hearing. Further, the testimony of claimant’s expert that the claimant was not able to earn any wages, which arguably should have been presented in his case in chief, was admitted without any contemporaneous objection. Tr. (7/20/2009) at 51-52. Under the Colorado Rules of Evidence, before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1); see also, § 8-43-210, C.R.S. 2009 (rules of evidence apply in workers’ compensation proceedings); Gallegos v. B M Roofing, W.C. 3-962-465 (January 25, 1991). Such action may be viewed as a waiver of any objection to the admission of opinions of the claimant’s expert, later relied upon by the ALJ in granting PTD benefits. Under the circumstances here, we do not view the ALJ’s action in allowing rebuttal testimony from the claimant’s expert as such an abuse of discretion as to require setting aside his order.

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IT IS THEREFORE ORDERED that the ALJ’s order dated August 10, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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TAHAR FILALI-MOUTEI, DENVER, CO, (Claimant).

KING SOOPERS, INC., Attn: MS KAY JOHANSEN, DENVER, CO, (Employer).

SEDGWICK CMS, Attn: MS SHARMIE JENSEN, LEXINGTON, KY, (Insurer).

JANICE M GREENING, LLC, Attn: JANICE GREENING, ESQ., DENVER, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: IAN RAY MITCHELL, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).

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