IN THE MATTER OF THE CLAIM OF CATHY LEEWAYE, Claimant, v. HARRISON SCHOOL DISTRICT #2, Employer, and AMERICAN COMPENSATION INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-649-073.Industrial Claim Appeals Office.
September 7, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 23, 2010, that denied the claimant’s claim for permanent partial disability benefits and for additional medical benefits. We affirm.

This matter was previously before us. In an order dated June 19, 2009, ALJ Stuber previously denied the claimant’s claim for permanent partial disability benefits and for additional medical benefits. The claimant appealed and raised a number of alleged errors. Among them was the contention that in making his credibility determination the ALJ had erroneously relied upon an exhibit that had been excluded from evidence. We agreed with that argument and in an order of remand dated December 9, 2009, we set aside ALJ Stuber’s order and remanded for entry of another order. Following the remand the ALJ entered this order on March 23, 2010, again denying the claimant’s claim for permanent partial disability benefits and medical benefits. The claimant appealed the ALJ’s order dated March 23, 2010, and that order is presently before us on review.

Because the ALJ’s order dated March 23, 2010 is similar in most respects to his previous order dated June 19, 2009, and reaches the same result, we reiterate here our description of the procedural history and the ALJ’s order, originally set forth in our order of remand of December 9, 2009. That previous description is equally applicable to the present order.

Page 2

Hearings were held on the issues of the claimant’s entitlement to permanent partial disability benefits and to medical benefits following maximum medical improvement. In connection with these issues the claimant sought to show that the physician designated to perform the Division-sponsored independent medical examination (DIME), Dr. Finn, was biased against her attorney and should have been removed from the panel of potential DIME physicians. Following the hearing the ALJ entered factual findings that for the purpose of this order may be summarized as follows: The claimant sustained a compensable injury when she sat on a bench, which then broke causing her to fall to the floor. She had sustained several previous industrial injuries, including one in February 1993 when she injured her low back and arm in a motor vehicle accident. She also sustained an injury in October 1997 when a television fell and struck her head and was injured in March 2001 when she fell. The claimant reported this injury in December 2003, and she was referred to Dr. Fortunato for medical treatment.

The ALJ entered factual findings regarding the course of medical treatment received by the claimant and found that on April 19, 2005 Dr. Hattem, who was apparently an authorized treating physician, examined the claimant and determined that she had reached maximum medical improvement with no permanent impairment attributable to the compensable injury. The claimant applied for a DIME, which Dr. Finn was designated to perform after the parties struck the names of two other doctors pursuant to the Division’s selection procedure. Dr. Finn performed the DIME on September 28, 2005, and reported that the claimant did not sustain a shoulder or wrist injury in the accident. Dr. Finn agreed with Dr. Hattem that the claimant had reached maximum medical improvement on April 19, 2005 and determined that the claimant has sustained no permanent impairment as a result of the 2003 injury. The insurer filed a final admission of liability on October 10, 2005, and then an amended final admission on October 26, 2005. The claimant objected to the final admission and applied for a hearing.

A hearing was held before ALJ Walsh on April 5, 2006 on the sole issues whether the claim was closed by the respondents’ final admission and whether the DIME should have been “invalidated” because of Dr. Finn’s alleged bias against the claimant’s attorney. ALJ Walsh determined that the claim was closed by the final admission. His order was eventually reversed by the Colorado Court of Appeals, which remanded for determination of the issue whether the DIME doctor was biased against the attorney. In an order dated May 22, 2008, ALJ Walsh denied the claimant’s request to strike the DIME report.

The ALJ here weighed the competing medical and other evidence and determined that the claimant had not overcome the DIME report. In this regard he found that the claimant failed to establish that any bias against her attorney warranted the conclusion that the DIME report had been overcome. The ALJ rejected the claimant’s argument that

Page 3

Dr. Finn had a duty to disclose that his relationship with the claimant’s attorney had been “adversarial.” The ALJ also rejected the argument that Dr. Finn’s destruction of his file of materials relevant to a grievance he filed against the claimant’s attorney was relevant, finding that Dr. Finn’s actions had “little impact on the facts of this case.” The ALJ was unpersuaded by the claimant’s argument regarding the “adversarial relationship” and he credited the doctor’s testimony that his medical opinions were not affected by his opinions of the patient’s attorney.

Based upon his factual findings, the ALJ denied permanent partial disability benefits and denied further medical benefits. The claimant appealed and makes several arguments. The claimant again contends that this ALJ as well as ALJ Walsh erred in refusing to strike the DIME report and that this ALJ erred in refusing to permit her to adduce evidence of the DIME doctor’s bias against the claimant’s attorney.

I.
The claimant first argues that despite removing the “objectionable portions” of his order, it is evident that the ALJ still relied upon the excluded exhibit in reaching his credibility determinations. In support of this argument the claimant relies upon the ALJ’s factual finding that “two different photocopied versions” of a pain diagram were marked and offered into evidence. The ALJ also observed that the original of the pain diagram was not produced at the hearing. Contrary to the claimant’s argument, we decline to infer from this finding that the ALJ considered the different exhibits in reaching his credibility determinations. Rather, as the claimant concedes, the ALJ deleted from his order the references to Exhibit KK, which was the pain diagram that was excluded from evidence. We presume that the ALJ complied with the remand and his mere reference to discrepancies in two proffered exhibits does not persuade us otherwise.

II.
The claimant also argues that the ALJ erred in precluding evidence of the DIME physician’s bias against the claimant’s attorney. Specifically, the claimant argues that she should have been permitted to introduce evidence of the spoliation of records by the doctor. She asserts that this spoliation occurred when the doctor destroyed records relating to his having filed a disciplinary complaint against the claimant’s attorney.

As noted previously, in an order dated May 22, 2008, ALJ Walsh denied the claimant’s request to strike the DIME report based upon Dr. Finn’s failure to disclose that he was biased against the claimant’s attorney. As we understand the claimant’s appeal, she argues that ALJ Walsh erred in that respect. Initially, we reject the respondents’ argument that the claimant did not preserve her appeal of this order and we conclude that review of ALJ Walsh’s order is properly before us. The parties agree that ALJ Walsh’s order refusing to strike the DIME report was interlocutory and not reviewable at the time

Page 4

it was entered. The respondents argue that, although the order might have become reviewable in conjunction with the final order entered by ALJ Stuber, the claimant failed to expressly appeal it in her petition to review. However, as conceded by the respondents, the claimant referred to ALJ Walsh’s order and contended that he erred in refusing to strike the DIME report. The petition to review contains sufficient information to notify the ALJ, the Division, and the parties of the alleged errors with respect to ALJ Walsh’s order, and of the claimant’s intent to appeal that order. Therefore, we address the claimant’s appeal of ALJ Walsh’s order. See Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970) (letter is in sufficient compliance with statutory requirements for filing petition to review).

Nonetheless, we perceive no error or abuse of discretion in ALJ Walsh’s order. The dispositive issue for resolution before ALJ Walsh was whether he was biased against the claimant’s attorney to the extent that he should have recused himself from serving on the panel of prospective DIME physicians in the claimant’s case. This issue regarding whether Dr. Finn should have disqualified himself because of a conflict of interest is essentially a factual one. Benuishis v. Industrial Claim Appeals Office, 195 P.3d 1142, 1144 (Colo. App. 2008). Consequently, because of the factual nature of this issue, we must apply the deferential substantial evidence standard of review. Under this standard, we must uphold the ALJ’s resolution of this issue if his factual findings are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 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. The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record Metro Moving and Storage Co. v. Gussert, supra. And the ALJ’s credibility determinations are entitled to particular deference. We may only interfere with those credibility determinations if the record contains hard, certain evidence that renders the ALJ’s determination erroneous as a matter of law. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). Finally, resolving conflicting inferences which could be drawn from the factual record is solely in the ALJ’s discretion. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Id.

In concluding that Dr. Finn had no obligation to disclose any potential bias or conflict of interest, the ALJ found that on December 24, 2003, the claimant’s attorney had written a letter to Dr. Finn that the latter construed as defamatory. Dr. Finn filed a complaint with the Attorney Regulation Counsel. He subsequently received a response stating that the claimant’s attorney had not violated any rules of professional conduct and that the complaint was being dismissed. The ALJ found that Dr. Finn’s response to the

Page 5

attorney’s “aggressive and confrontational” letter was one that was “clearly measured and not inappropriate,” and that Dr. Finn’s filing the complaint was a “proper avenue available to ordinary citizens” in dealing with conduct by an attorney that he interpreted as inappropriate.

ALJ Walsh also found that the Division sent the DIME panel, which contained Dr. Finn’s name, to the parties on July 20, 2005, and that the claimant declined to strike his name. The respondents then struck another doctor’s name, leaving Dr. Finn as the physician designated to perform the DIME. The ALJ further found that the claimant did not request at that time another panel, nor did she at any time “during the process” object to Dr. Finn or seek any similar relief by requesting a hearing pursuant to Rule of Procedure 11-10. ALJ Walsh found that Dr. Finn performed the DIME on September 28, 2005 and issued a report on that day. Dr. Finn was aware of the identity of the claimant’s attorney and “did not perceive any conflict of interest or appearance of a conflict” with respect to the attorney that would suggest that he should disqualify himself from serving as the DIME physician. ALJ Walsh credited Dr. Finn’s testimony that he was able to evaluate the clients of the claimant’s attorney in an unbiased manner, exercising his best medical judgment despite the identity of their attorney. ALJ Walsh found that Dr. Finn was not biased against the attorney and that there was no appearance of any impropriety that should have prompted Dr. Finn to decline to serve as a DIME physician in this case. The ALJ observed that approximately 15 months had elapsed between the dismissal of Dr. Finn’s complaint against the attorney and his selection as the DIME physician in this case.

These findings are amply supported by the factual record and therefore we must uphold them. Dr. Finn testified at the hearing on the issue of his alleged bias and possible duty to disqualify himself as a prospective DIME physician in the claimant’s case. His testimony fully supports ALJ Walsh’s findings that he was not biased against the claimant’s attorney, and that he had no duty to disqualify himself E.g., Tr. (April 5, 2006) at 66, 67, 68, 83, 88, 93, 94, 95, 101. We are thus compelled to uphold the factual findings that Dr. Finn was not biased against the claimant because of any interaction he had had in the past with her attorney, as well as the findings that because he was not biased he had no duty to disqualify himself as a prospective DIME physician.

We note in this regard that we have assumed, without deciding, that the claimant’s allegations that the doctor dislikes her attorney are even of the sort that would support a conclusion that the doctor had a disqualifying conflict of interest. But see City of Manassa v. Ruff, 235 P.3d 1051 (Colo. 2010). Although Ruff suggests that it may not be, that opinion was decided several years after ALJ Walsh entered his order, as was Benuishis, supra, and it is unnecessary for us to determine its possible application to this matter, either in terms of its holding or in terms of its possible retroactive effect.

Page 6

We are also unpersuaded by the claimant’s argument that the ALJ erred or abused his discretion in precluding further evidence of Dr. Finn’s bias against her attorney. As we understand the claimant’s argument, she alleges error in the ALJ’s refusal to permit the introduction of evidence concerning Dr. Finn’s “spoliation” of evidence in the form of his destruction of the file containing matters related to the complaint he filed against the claimant’s attorney. As previously noted, the claimant was afforded a full opportunity to litigate the issue of Dr. Finn’s bias against her attorney. During the hearing held on that matter, the destruction of the file was the subject of testimony and extensive discussion and legal argument. See Tr. (April 5, 2006) at 38ff As we understand the record, it was not until November 24, 2008, six months following the entry of ALJ Walsh’s order, that the claimant moved to introduce further evidence on the issue of Dr. Finn’s alleged bias. The motion proposed to adduce testimony from Dr. Finn’s partners to the effect that they did not participate in filing the complaint against the attorney. The claimant also proposed to establish the “actual facts” of Dr. Finn’s destruction of the file containing materials relevant to his complaint about the attorney. This motion was denied.

We perceive no reversible error in this respect. Section 8-43-207(1)(j), C.R.S. authorizes an ALJ to adjourn a hearing to a later date for the taking of additional evidence for good cause shown. Ortega v. Industrial Claim AppealsOffice, ___ P.3d ___, (Colo. App., No. 08CA0692, Feb. 19, 2009) (citing Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430, 440 (Colo. App. 2003). Under section 8-43-207(1), C.R.S. the ALJ is vested with wide discretion in the conduct of evidentiary proceedings. IPMC Transp. Co. v. Indus. Claim Appeals Office, 753 P.2d 803, 804-05 (Colo. App. 1988) (citing predecessor statute) see § 8-43-209(3), C.R.S. 2008 (once hearing commences, ALJ “may, for good cause shown, continue the hearing . . . to take additional testimony [or] to file an additional medical report”). “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.”Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, 222 (Colo. App. 2008).

Here, although Dr. Finn testified at the hearing that he had destroyed his file, the claimant did not seek a continuance to permit the taking of additional evidence. Assuming, however, that six months after entry of his order the ALJ had the discretion to hold an additional hearing to permit further testimony, he did not abuse his discretion in refusing to do so. Because the ALJ’s authority to permit additional evidence after the conclusion of the hearing is discretionary, we may not interfere with the ALJ’s denial of the claimant’s request unless an abuse of discretion is shown. Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430 (Colo. App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.3d 803 (Colo. App. 1988); Pemberton v. Jim Snook D/B/A Old Outlaw Construction, W. C. No. 4-604-588 (December 09, 2004).

Page 7

The appellate standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Under the circumstances, we find no abuse of discretion in the ALJ’s declining to schedule a new hearing to permit the claimant to introduce further evidence of Dr. Finn’s alleged bias against the claimant’s attorney.

III.
Finally, the claimant argues that the ALJ erred in determining that the DIME physician’s report on causation was binding unless overcome by clear and convincing evidence. In this regard, the claimant argues that the DIME procedures do not shift to the physician the determination of “compensability,” but rather that issue remains one for the ALJ. Under the circumstances of this case, we disagree with this argument. An employer is responsible for the direct and natural consequences which flow from a compensable injury. Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). Section 8-42-107(8)(c), C.R.S. provides that the DIME physician’s finding of medical impairment “shall be overcome only by clear and convincing evidence.” The party challenging the DIME physician’s impairment rating bears the burden of proof. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo. App. 1998). Furthermore, the court of appeals has held that the DIME physician’s opinion on the cause of a claimant’s disability is an inherent part of the diagnostic assessment which comprises the DIME process of determining MMI and rating permanent impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998). It follows that the party disputing the DIME physician’s opinions on the issue of causation bears the burden to overcome the DIME physician’s opinions by clear and convincing evidence.

In our view, the court in Qual-Med, Inc., rejected a similar argument to that made by the claimant here. In that case the employer contested the ALJ’s award of benefits based on the DIME’s cervical impairment, arguing that it was not related to the claimant’s compensable carpal tunnel syndrome. The court stated that “employer contends that the Panel erred in giving the IME presumptive force without first requiring the claimant to show by a preponderance of the evidence that his neck and shoulder problems were caused by his carpal tunnel syndrome.” Qual-Med, Inc., 961 P.2d at 592. In rejecting the employer’s argument, the court held that the assignment of impairment to particular components of an injury is a medical function closely connected to the DIME doctor’s obligation to diagnose and evaluate the claimant’s injuries: “Thus, the IME physician’s conclusion that the neck and shoulder problems were components of claimant’s overall impairment simply constituted a part of the diagnostic assessment that

Page 8

comprises the IME process.” Id. The court rejected the employer’s argument that the claimant had to make a threshold showing that his neck problems were a compensable consequence of his work-related injury or condition. The DIME doctor made that determination, which then had to be overcome by clear and convincing evidence.

In our view, these principles are equally applicable to the present case, where the DIME physician opined that certain components of the claimant’s condition were not caused by the industrial injury. Accordingly, we perceive no error in the ALJ’s determination that the claimant was required to overcome the DIME report on the issue of the relatedness of the components of her condition.

IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

Page 9

CATHY LEEWAYE, GREELEY, CO, (Claimant).

HARRISON SCHOOL DISTRICT #2, COLORADO SPRINGS, CO, (Employer).

AMERICAN COMPENSATION INSURANCE COMPANY, Attn: MR. DON HAUGEN, MINNEAPOLIS, MN, (Insurer).

STEVEN U. MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: MARGARET KECK, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).

Page 1