IN RE AGUIRRE, W.C. No. 4-380-016 (09/11/00)


IN THE MATTER OF THE CLAIM OF JASON AGUIRRE, Claimant, v. WAL-MART ASSOCIATES, INC., Employer, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer, Respondents.

W.C. No. 4-380-016Industrial Claim Appeals Office.
September 11, 2000

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) denying his claim for compensation. The claimant contends the ALJ placed undue reliance on certain medical testimony in finding the claimant failed to prove a causal relationship between the alleged industrial injury and a ruptured disc. The claimant also contends he was denied due process of law because the ALJ failed to hold an additional hearing to allow for the presentation of more medical evidence. We affirm.

This matter was before us previously. Our Order of Remand dated January 24, 2000, contains an extensive statement of the facts, and we incorporate that statement here. Suffice it to say we directed the ALJ to resolve an “inconsistency between the history to which the claimant testified and the history which he reported to Dr. Turner.” Resolution of this conflict in the evidence was necessary because, we concluded, Dr. Turner “admitted that his opinion concerning causation is dependent on the accuracy of the history given by the claimant, and [Dr. Turner] stated that if the claimant’s symptoms actually began later in the day, the symptoms would not be considered work-related.” Finally, we directed that once the ALJ resolved the conflict concerning the claimant’s history he was to “reconsider the evidentiary weight to be assigned Dr. Turner’s opinion on the issue of causation.”

After issuance of our order or remand, but prior to the entry of the ALJ’s March 23, 2000, order on remand, claimant’s counsel wrote a letter to Dr. Turner requesting him to address “the issue of causality in light of the noted conflict between the morning onset and that afternoon onset of February 13, 1998.” On March 16, 2000, Dr. Turner issued a report stating that he had reviewed his records and “it would seem to me that it is still more likely than not that work caused [the claimant’s] problem, whether or not there was a morning onset, or an afternoon onset on February 13, 1998.” (copies of letters attached to claimant’s brief).

In the March 23 order, issued pursuant to our order of remand, the ALJ credited the claimant’s hearing testimony, as well as a medical report dated February 16, 1998, and found the claimant’s back and leg symptoms did not begin immediately after work on February 13, 1998. Rather, the ALJ found that the claimant’s symptoms began later in the day. Further, the ALJ credited Dr. Turner’s August 1998 deposition testimony that the claimant’s condition “would not be work-related if the onset of those symptoms was later in the day, and not at work or when claimant got into his car at the end of” the shift. (Finding of Fact 10).

In light of these findings, the ALJ concluded the claimant failed to prove a causal connection between heavy lifting activities at work and the low back symptoms which developed on the afternoon of February 13, and the eventual discovery of a herniated disc. The ALJ specifically stated the claimant’s “opinion regarding causation” was not given the same weight as Dr. Turner’s testimony. Further, the ALJ found no “credible evidence refutes the opinion of Dr. Turner” concerning causation.

The claimant filed a timely petition to review the ALJ’s March 23 order, and a brief in support of the petition. In the brief, the claimant states that Dr. Turner’s letter of March 16, 2000, “was developed and transmitted” prior to entry of the March 23 order. The claimant also alleges that he filed a request for a corrected order, but the ALJ never ruled on this motion. The record does not contain a copy of the request for a corrected order.

I.
On review, the claimant contends the ALJ erroneously treated Dr. Turner’s deposition testimony as being “dispositive” on the issue of causation. According to the claimant, the ALJ failed to recognize that his finding concerning Dr. Turner’s testimony was contrary to most of Dr. Turner’s deposition testimony, and obviously contrary to Dr. Turner’s opinion found in the March 16, 2000, report. The claimant also asserts the ALJ disregarded the claimant’s lay testimony on the issue of causation, as well as other medical evidence pertaining to the issue. We find no error.

The ALJ correctly recognized that the burden of proof was on the claimant to prove by a preponderance of the evidence that his back condition was proximately caused by an injury arising out of and in the course of employment. Faulkner v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1136, May 11, 2000). The question of whether the claimant met the burden of proof to establish causation is one of fact for determination by the ALJ Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999).

Because the issue of causation is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. It is true that causation need not be proven by medical evidence, and the weight to be accorded expert medical opinion is solely within the ALJ’s discretion as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Similarly, to the extent a physician’s opinion is ambiguous or subject to conflicting interpretations, we are bound by the ALJ’s resolution of such conflicts. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). Finally, we note the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. The ALJ need not make findings concerning every piece of evidence, nor resolve every conflict in the evidence, so long as the findings are sufficient to demonstrate the basis of the order Magnetic Engineering, Inc. v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 99CA1380, June 8, 2000).

The claimant’s argument notwithstanding, we do not read the ALJ’s March 23 order as premised on the legal assumption that Dr. Turner’s testimony was “dispositive” on the issue of causation. To the contrary, in that portion of the order labeled “Issues,” the ALJ expressly recognized that he was to resolve the inconsistency between the claimant’s hearing testimony and the history the claimant gave to Dr. Turner. The ALJ stated he was “to then reconsider the evidentiary weight to be assigned Dr. Turner’s opinion on the issue of causation.” (Emphasis added). Further, the ALJ found that Dr. Turner “credibly opined” the claimant’s symptoms were not work-related if the “onset of those symptoms was later in the day.” (Finding of Fact 10).

Neither did the ALJ disregard the claimant’s testimony and other medical evidence bearing on the issue of causation. The ALJ expressly found the claimant’s “opinion regarding causation” was not given the same weight as the opinion of Dr. Turner. The ALJ in no way indicated the claimant’s testimony would be insufficient as a matter of law to support a finding of causation if the ALJ found the testimony to be persuasive. Further, the ALJ did not disregard other medical evidence in the record. To the contrary, he found that “no credible evidence” refuted Dr. Turner’s opinion Cf. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132
(Colo.App. 1988). The fact the ALJ did not make specific findings concerning the content of other medical records does not render the order inadequate for purposes of appellate review. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.

Further, the ALJ’s findings concerning Dr. Turner’s deposition testimony are fully supported by the record. At the deposition the following colloquy occurred between respondents’ counsel and Dr. Turner:

Q. If the history were no particular injury, developed low back pain and leg pain during the day, February 13, 1998, that history doesn’t prove the injury was caused by work at Sam’s Club, does it?
A . I guess — I guess not. I think you have to put it into context with what he was doing that day. And if the symptoms started at work and got worse, then we would say it was a work-related problem.
Q. But if they didn’t start at work but just during the day, not at work, then the symptoms would not be related to work, would they?
A. That would be correct.

Because the ALJ found the claimant’s symptoms did not commence at work, or immediately thereafter, the foregoing deposition testimony provides an evidentiary basis for the ALJ’s finding that Dr. Turner was “unequivocal” concerning the relationship between the claimant’s history and the issue of causation. The mere fact that other interpretations of the deposition might be possible affords no basis for interfering with the ALJ’s plausible interpretation of the record.

Further, Dr. Turner’s March 2000 report, authored nearly a year and a half after the ALJ’s original order, provides no basis for interfering with the ALJ’s March 23 order on remand. The written report was obviously not admitted into evidence at the original hearing. Indeed, it did not yet exist at the time we issued our Order of Remand in January 2000. Consequently, the report was never properly admitted into evidence, and the ALJ was not entitled to consider it. Rule of Procedure VIII (I) (6), 7 Code Colo. Reg. 1101-3 at 27 (only records and reports filed at formal hearing and relevant to issues set for hearing will be considered as evidence). The mere fact the claimant attached the report to his brief, or submitted it in connection with a the motion for a corrected order, does not make the report a part of the evidence. City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995); Subsequent Injury Fund v. Gallegos, 746 P.2d 71
(Colo.App. 1987).

II.
The claimant next contends he was denied due process of law because the ALJ did not conduct a new hearing, following our order of remand, for the purpose of accepting additional evidence including Dr. Turner’s March 16, 2000, report. We disagree.

Due process requires that the parties be afforded a reasonable opportunity in which to confront adverse evidence and to present evidence and argument in support of their positions Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). However, failure to use an existing process cannot equate to a lack of due process. Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994).

Here, Dr. Turner was deposed by the respondents in August 1998, and the claimant was afforded the opportunity to cross-examine Dr. Turner. If the claimant had wished to clarify Dr. Turner’s opinion on the issue of causation and its relationship to the claimant’s medical history, he could have done so at that time. It is unreasonable to assume the claimant and his attorney were unaware the claimant’s projected hearing testimony about his medical history would be different than the history he related to Dr. Turner, and also unaware of the February 16, 1998, medical report. Moreover, the respondents petitioned to review the ALJ’s first order and specifically argued that Dr. Turner’s deposition testimony did not support the award because it was predicated on an incorrect medical history. If, in light of this argument, the claimant had desired to submit additional evidence concerning Dr. Turner’s opinion, he could have requested the ALJ to set an additional hearing. Section 8-43-301(5), C.R.S. 2000. However, the claimant never requested such relief until after we issued our ruling concerning the respondents’ appeal. Thus, prior to the ALJ’s initial order the claimant was afforded ample opportunity to obtain and submit the evidence which he now seeks to introduce, but failed to avail himself of the statutory remedies. Under these circumstances, the claimant was not denied due process of law.

Moreover, our order or remand did not contemplate the taking of additional evidence. Instead, we instructed the ALJ to resolve a conflict in the existing evidence and enter a new order in accordance with his resolution. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (court itself was in the best position to interpret the scope of its own order of remand).

IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 2000, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Dona Halsey

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. 2000. 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 11, 2000 to the following parties:

Jason Aguirre, 807 Cambridge Dr., Ft. Collins, CO 80525

Wal-Mart Associates, Inc. #842, 4200 Dillon Dr., Pueblo, CO 81008-2113

Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064

Jon Causseaux, CMI, P. O. Box 3708, Bartlesville, OK 74006-3708

Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)

Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)

BY: A. Pendroy