IN THE MATTER OF THE CLAIM OF SARAH MENDICELLI, Claimant, v. NOR-MAR, INC./BURGER KING, Employer, and WAUSAU INSURANCE CO., Insurer, Respondents.

W.C. No. 4-785-226.Industrial Claim Appeals Office.
October 6, 2010.

ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated May 20, 2010, that ordered payment of permanent partial disability based upon the opinion of the Division-sponsored independent medical examination (DIME) physician. We set aside the order and remand for further proceedings.

The claimant suffered an admitted injury to her right upper extremity consisting of a dyshidrotic eczema rash. The treating physician eventually placed the claimant at maximum medical improvement (MMI) and provided the claimant with an impairment rating of 3 percent whole person based upon Table 1 of the American Medical Association Guideline to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The claimant underwent a Division-sponsored independent medical examination. The DIME physician opined that the claimant had an impairment under Table 1 of the AMA Guides of at least 25 percent whole person impairment. The DIME physician then combined this rating with a 23 percent whole person impairment from a different section of the AMA Guides for a final permanent impairment rating of 42 percent whole person. The DIME physician noted the dramatic difference in impairment ratings, but commented that this case represented an example in which specific application of the AMA Guides can lead to substantially different impairment ratings.

At the hearing the respondents moved for the admission of certain sections of the AMA Guides. The claimant objected to the admission of the sections of the AMA Guides and the objection was sustained. The respondents argued that they had overcome the opinion of the DIME physician. The ALJ noted that the respondents’ argument was

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premised upon a review of the AMA Guides Chapter 13 section 13.6. However, because those sections were not admitted into evidence the ALJ did not consider them. The ALJ determined that the respondents had failed to show that it was highly probable and free from substantial doubt that the opinion of the DIME physician regarding the claimant’s permanent impairment was in error. On appeal the respondents contend the ALJ committed error when he refused to admit into evidence or to consider sections of the AMA Guides.

At the hearing the respondents offered Chapter 13 of the AMA Guides. Tr. at 7. The claimant objected on the grounds of foundation noting that the AMA Guides were neither a medical record or an employer record. Tr. at 7. The respondents asked that the ALJ take judicial notice of the AMA Guides as an evidentiary exhibit or simply as the law which is referred to in the statute. Tr. at 7-8. The hearing transcript does not indicate any objection based on the tendered AMA Guides being incomplete or otherwise defective. The ALJ determined that he was not allowed to take judicial notice of the AMA Guides and sustained the objection. Tr. at 8.

We initially note that the ALJ has broad discretion in the conduct of evidentiary proceedings. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). We therefore review the ALJ’s ruling in this instance under the abuse of discretion standard. See Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo. App. 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard). An abuse of discretion does not occur unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. App. 1993). In our view the ALJ abused his discretion in refusing to admit the offered sections of the AMA Guides into evidence.

The claimant has cited a number of Panel orders she contends support the refusal into evidence of the AMA Guides under the circumstances of this case. We discuss these cases below, but it is our opinion that they do not support the claimant’s position. The first Panel case we have found on the issue is Hasty v. Gutierrez, W. C. No. 4-145-666 (July 11, 1995). In Hasty the respondents argued that the ALJ improperly took administrative notice of the AMA Guides in evaluating a physician’s testimony. The Panel, citing City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995) and Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo. App. 1995), agreed with the respondents that it was improper for an ALJ consider the specific contents of the AMA Guides unless placed in evidence. The Panel concluded that the ALJ should be permitted, in the exercise of his discretion, to hold an additional hearing to receive the pertinent portions of the AMA Guides into evidence, and to permit all parties an opportunity to present further evidence concerning the application of the AMA Guides to the facts of this case.

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We note that in Hasty the Panel relied upon City of Boulder v. Dinsmore and Askew v. Sears Roebuck Co. I City of Boulder v. Dinsmore, both parties had attached to their briefs various documents, including what appeared to be portions of the AMA Guides and a syllabus included in the Division of Workers’ Compensation’s accreditation training materials. These documents were relied upon by claimant’s psychiatrist in formulating his opinion regarding the extent of medical impairment. The court, citing Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987), ruled that because these documents were not presented to the ALJ, they are not a part of the appellate record and they would not be considered in this appeal.

In Askew v. Sears Roebuck Co., which was the second case relied upon by the Panel in Hasty, the court found that just as the authorized treating physician must base the impairment rating on the AMA Guides under § 8-42-107(8)(c), a DIME physician is likewise bound by this same standard. See §§ 8-42-101(3)(a)(I) and 8-42-101(3.7). The court concluded that because portions of the AMA Guides formed part of the record in the case, it could consider those portions on review.

We read Hasty v. Gutierrez, particularly in light of the Panel’s reliance on City of Boulder v. Dinsmore an Askew v. Sears Roebuck Co., as merely holding that an ALJ should refrain from considering specific contents of the AMA Guides unless placed into evidence by one of the parties. In contrast here one of the parties did attempt to place portions of the AMA Guides into evidence. We find no support in Hasty v. Gutierrez, City of Boulder v. Dinsmore, or Askew v. Sears Roebuck Co., for the claimant’s objection to receipt of portions of the AMA Guides into evidence.

In Boice v. Continental Airlines, W.C. 3-902-441 (July 5, 1989) affd Boice v. Industrial Claim Appeals Office 800 P.2d 1339 (Colo. App. 1990), the Panel rejected an argument by the claimant that the ALJ should have consulted the AMA Guides in order to calculate his permanent medical impairment. The Panel noted that the AMA Guides were not in evidence. Citing the well known principle that the parties are expected to introduce all of their evidence at the appointed hearing the Panel determined that the ALJ did not err in declining to consider it. In contrast here one of the parties attempted to introduce the relevant portions of the AMA Guides into evidence before the ALJ. Therefore we find no support in Boice for the claimant’s objection.

In Harris v. Millwood Plumbing Heating, Inc.
W.C. 4-110-154 (May 11, 1994) the respondents had attached to their appellate brief copies of what they consider to be the pertinent pages from the AMA Guides. However, the Panel noted that AMA Guides had not been introduced into evidence at the hearing. Consequently, the Panel, citing Subsequent Injury Fund v. Gallegos, held it was not at liberty to consider the evidentiary

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items which the respondents attached to their brief. We vie Harris as simply following the well established rule that parties are expected to submit their evidence at the time of the hearing and representations and attachments to an appellate brief may not substitute for that which must appear of record. See Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). We do not rea Harris as holding that an ALJ must refuse at the time of a hearing to accept into evidence portions of the AMA Guides after being requested by one of the parties to do so.

We note that in Harris and many of the cases in this area, the Panel relied on Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987). In Gallegos one of the respondents urged that the scheduled award was equivalent to a 10% working unit award when converted under a method outlined in the AMA Guides. The respondent urged that this conversion be accepted despite the fact that the AMA Guides was not included in this record, nor was there any evidence of its contents. The court rejected this assertion; determining that the statements of counsel may not substitute for that which must appear of record Gallegos instructs us that a party may not merely attach portions of the AMA Guides to an appellate brief when those documents were not made part of the record before the ALJ. However Gallegos does not support the exclusion of the AMA Guides at the hearing level when the ALJ is asked to accept them into evidence.

In Maloney v. Swanson Dad, W. C. No. 4-298-382 (December 7, 2001) the claimant argued that the ALJ improperly took notice of the AMA Guides. The Panel stated that it generally agreed with the claimant’s argument that the ALJ must not consider the contents of medical treatises, including the AMA Guides, unless such treatises have been placed in evidence. However, the Panel found that it was harmless error under the circumstances of that case. In contrast here again the respondents attempted to place the AMA Guides into evidence.

In Lee v. J. Garlin Commercial Furnishings, W. C. No. 4-421-442 (December 17, 2001) the respondents contended that the ALJ’s findings were insufficient to permit review insofar as the ALJ failed to make any findings concerning the respondents’ argument that a physician had not complied with page 3 of the AMA Guides, which purportedly required the DIME physician to consult with the other rating physicians or conduct additional clinical investigation to resolve disparities between his rating and other ratings in the record. The Panel noted that the record transmitted on review did not contain page 3 of the AMA Guides. The Panel determined that the respondents’ arguments concerning the contents of the AMA Guides would not be allowed to substitute for evidence not in the record. The Panel once again relied upo Gallegos in determining that the record failed to support the respondents’ arguments concerning the AMA Guides’ requirements.

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In Mobley v. Denver Broncos
W. C. No. 4-628-989 (June 9, 2006) the Panel held that because the record transmitted on review did not contain Table 53 of the AMA Guides the claimant’s arguments concerning the contents of the AMA Guides could not substitute for evidence not in the record. I Mobley the Panel again relied upon Gallegos in deciding not to consider a document that was not in the record before the ALJ. Again the contrast with the present case is that the respondents attempted to place the relevant portions of the AMA Guides into evidence.

Here we see no prohibition to the ALJ’s taking of administrative notice of the AMA Guides as requested by the respondents. Section 8-43-210, C.R.S., contains the basic evidentiary provisions applicable to workers’ compensation claims in Colorado. It states in pertinent part that the Colorado rules of evidence and requirements of proof for civil nonjury cases in the district courts shall apply in all hearings. State, Dept. of Labor and Employment v. Esser 30 P.3d 189 (Colo. 2001). Administrative notice may be taken in a workers’ compensation hearing. See Ernie Baylog, Inc. v. Industrial Claim Appeals Office, 923 P.2d 361, (Colo.App. 1996) (court approved of the ALJ’s taking of administrative notice of the fact that: “You run into meal expenses on the road.”)

CRE 201(b) provides that a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to the sources whose accuracy cannot reasonably be question. CRE 201(d) provides that a court shall take judicial notice if requested by a party and supplied with the necessary information. Parties may seek an opportunity to be heard as to the propriety of taking judicial notice. CRE 201(e). Moreover, judicial notice must be taken if requested by a party and supplied with the necessary information. CRE 201(d).

In our view the AMA Guides are a fit subject for administrative notice. The contents of the AMA Guides are not subject to reasonable dispute. The AMA Guides are certainly well known to the ALJs. Further, Colorado, along with a number of other states, has legislatively adopted the use of the AMA Guides as the required methodology to determine the level of medical impairment within the workers’ compensation context. See Larson, Workers’ Compensation Law, 80.07 at 80.45. In the 1991 legislative session, the General Assembly repealed the statute governing benefits for permanent partial disability and replaced it with provisions for benefits now termed “permanent medical impairment.”See Colo. Sess. Laws 1991, ch. 219, § 8-42-107; See also Metro Moving Storage Co. v. Gussert 914 P.2d 411 (Colo.App. 1995). The Colorado General Assembly, in the Workers’ Compensation Act, has chosen to designate the AMA Guides as the basis for physical impairment ratings. Section 8-42-101(3)(a)(I), C.R.S; § 8-42-101(3.7).

Therefore, the provisions of the AMA Guides has been seen by the General

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Assembly as being capable of accurate and ready determination by resort to a source whose accuracy cannot reasonably be questioned See Westfall v. Town of Hugo 851 P.2d 299 (Colo. App. 1993) (rule published in the code of Colorado regulations are a fit subject for judicial notice). Consequently, in a hearing before an ALJ regarding a claim under the Workers’ Compensation Act, the AMA Guides are subject to administrative notice. In our view it was error for the ALJ to refuse to either take administrative notice of the sections of the AMA Guides offered by the respondents or otherwise receive them into evidence.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 20, 2010 is set aside. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein after review of the portions of the AMA Guides offered by the respondents and consideration of the arguments premised on those sections of the AMA Guides.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

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SARAH MENDICELLI, 2426 G ROAD, GRAND JUNCTION, CO, (Claimant)

NOR-MAR, INC./BURGER KING, Attn: SONNY VALDEZ, GRAND JUNCTION, CO, (Employer)

WAUSAU INSURANCE CO., Attn: KATHLEEN WOYCHICK, IRVING, TX, (Insurer)

WITHERS, SEIDMAN, RICE MUELLER, Attn: CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO, (For Claimant)

LAW OFFICES OF RICHARD P. MYERS, Attn: DAVID KROLL, ESQ., DENVER, CO, (For Respondents)

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