W.C. No. 4-246-350Industrial Claim Appeals Office.
September 3, 1997
ORDER OF REMAND
The claimant seeks review of two orders of Administrative Law Judge Erickson (ALJ), which denied her claim for additional temporary disability benefits and denied her post-hearing motion to present additional evidence. We set the orders aside and remand for further proceedings.
In October 1994, the claimant suffered an admitted occupational disease involving her upper extremities. Electrodiagnostic testing was conducted in November 1994, and was reported as negative. The claimant’s authorized treating physician placed her at maximum medical improvement (MMI) in December 1994. However, the claimant continued to experience difficulties with her upper extremities and was examined by Dr. Brailliar in July 1995. Dr. Brailliar opined that the claimant was suffering from bilateral carpal tunnel syndrome and should undergo surgery.
A Division-sponsored independent medical examination (IME) was conducted by Dr. Draznin in January 1996. Dr. Draznin signed an “IME Examiner’s Information Sheet” stating that she agreed with the treating physician’s date of MMI. However, Dr. Draznin stated the following in her written report:
“Electrodiagnostic studies were performed on 11/7/94, presumably only sixteen days after the patient reported her injury. Although her symptoms started somewhat early it is conceivable that electrodiagnostic studies were performed too early in order to diagnose entrapment neuropathy. I recommend, therefore, to proceed with complete electrodiagnostic studies including mid palm stimulation and if needed, comparisons of palm to wrist latency of the median and ulnar nerves.”
Dr. Draznin went on to state that if these studies are negative, “then I believe the patient is at maximum medical improvement and the date of MMI as stated by [the treating physician] should apply.”
On July 24, 1996, the ALJ issued an order stating that Dr. Draznin’s IME report “could be considered ambiguous with respect to the issue of MMI.” However, the ALJ determined that Dr. Draznin had indeed placed the claimant at MMI, and that this conclusion was supported by evidence that the 1994 electrodiagnostic studies were negative, and because no other physician had recommended repeat diagnostic testing. The ALJ further stated that the claimant failed to overcome Dr. Draznin’s finding of MMI by clear and convincing evidence. Therefore, the ALJ denied further temporary disability benefits.
The claimant filed a timely petition to review the ALJ’s July 24, 1996 order. Further, on July 24, 1996, the claimant filed a “Motion to Submit Subsequent Medical Record to IME Physician.” In this motion, the claimant averred that the respondents had agreed to the repeat testing recommended by Dr. Draznin shortly before the June 6, 1996 hearing. Moreover, the testing was performed on June 17, 1996, and the report indicates there is left arm “ulnar neuropathy” and “borderline ulnar dysfunction on the right.” The claimant proposed that the test results be submitted to Dr. Draznin for evaluation, and that the issue of MMI be reconsidered in light of this evidence.
The respondents objected to the claimant’s motion, relying on Rule of Procedure VIII(I)(6), 7 Colo. Code Reg. 1101-3 at 27. This rule provides that “[O]nly reports and records filed and identified at the formal hearing which are relevant to an issue set for hearing will be considered as evidence.” Thus, the respondents argued that the claimant’s motion constituted an impermissible attempt to submit further evidence in the case.
On August 19, 1996, the ALJ entered an order denying the claimant’s motion. The ALJ made no specific findings of fact or conclusions of law in the order.
On review, the claimant contends, inter alia, that the ALJ erred in denying her motion to submit the additional evidence to the IME physician and redetermine the issue of MMI. Because the ALJ’s findings and conclusions are insufficient to support appellate review of this issue, we remand for further proceedings.
ALJs possess statutory authority to order the taking of additional evidence subsequent to the apparent conclusion of an evidentiary hearing. Section 8-43-207(1)(j), C.R.S. (1996 Cum. Supp.); § 8-43-301(5), C.R.S. (1996 Cum. Supp.). Determination of whether a party has shown “good cause” for submitting additional evidence and delaying final resolution of the issues is a matter within the sound discretion of the ALJ. Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987).
In determining this question, the ALJ may evaluate whether a party has exercised due diligence to obtain the evidence prior to the hearing, as well as the inconvenience and expense to the opposing party if a delay is permitted. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Further, the ALJ may consider the relative importance of the evidence, and particularly whether it may be “outcome determinative.” Raffaelo v. Industrial Commission, 670 P.2d 805
(Colo.App. 1983).
Because the ALJ has discretionary authority to grant or deny continuances for the taking of additional evidence, we may not interfere with the order unless it exceeds the bounds of reason See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). However, in order to permit meaningful review of an ALJ’s decision concerning the presentation of post-hearing evidence, the ALJ must make findings and conclusions which are sufficient to indicate the basis of his decision. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). It is for this reason that we have previously held that an ALJ’s discretionary authority to determine the course of hearings does not relieve him of the obligation to articulate the basis of an order denying a continuance. See Libenson v. Cook Lee, P.C.,
W.C. No. 4-190-782 (August 18, 1994).
Here, the claimant has alleged that she was unable to procure the repeat electrodiagnostic test results prior to the hearing because the respondents did not agree to pay for them, and because she lacked funds to obtain them on her own. Moreover, the respondents ultimately agreed to pay for the tests, and the test results indicate that the claimant may not be at MMI in the opinion of the IME physician. Thus, the evidence which the claimant seeks to present might be outcome determinative. See §8-40-201(11.5), C.R.S. (1996 Cum. Supp.) (MMI exists when physical impairment is stable and no further treatment is reasonably expected to improve the condition).
Under these circumstances, it is appropriate to remand the matter to the ALJ for entry of specific findings and conclusions concerning whether or not the claimant is entitled to a continuance for purposes of obtaining and presenting additional evidence. The ALJ should make specific findings which afford a basis for review of the order he enters. If the ALJ determines that the claimant should be afforded the opportunity to present additional evidence, the ALJ should grant the respondents an opportunity for rebuttal.
In reaching this result, we have considered the respondents’ assertion that the IME provisions of former § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [significantly amended in 1996], do not apply to this case because the claimant sustained injuries which are on the schedule of disabilities. Under this theory, the respondents assert that the opinion of Dr. Draznin, as the IME physician, is not entitled to the special weight accorded by §8-42-107(8)(b).
We have previously rejected the respondents’ argument in several cases. E.g. Lopez v. Westin Hotel, W.C. No. 4-168-893
(July 5, 1996); Delants v. Federal Reserve Bank of Kansas City,
W.C. No. 4-240-793 (June 13, 1996). The following language from the Lopez decision is pertinent:
“Initially, we have previously held that the IME provisions of § 8-42-107(8)(b) are not limited to cases involving non-scheduled whole person medical impairments. In Delants v. Federal Reserve Bank of Kansas City [citation omitted] we stated that the IME provisions of subsection (8)(b) apply to cases involving scheduled impairments as well as whole person impairments. In support, we cited Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995), and Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), for the proposition that subsection (8)(b) governs terminations of temporary disability benefits under § 8-42-105(3)(a). We noted that neither decision held that the IME procedure for determining MMI depends on whether or not the treating physician opines that the claimant has a scheduled or whole person impairment. In fact, in Story, the treating physician opined that the claimant had no permanent impairment whatsoever.
Moreover, Delants held that, although the statutory scheme is ambiguous, the statute as a whole does not indicate that the procedures for determining MMI depend on whether or not a claimant’s impairment is scheduled or whole person. Specifically, we stated that the definition of MMI found at § 8-40-201
(11.5) . . . does not turn on the type of permanent impairment. Further, we stated that the IME procedure does not interfere with the `calculation’ of whole person impairments, and therefore, its application to non-scheduled impairments is not inconsistent with § 8-42-107(8)(a), C.R.S. (1995 Cum. Supp.).”
We place no great significance on the fact that, in 1996, the General Assembly amended § 8-42-107(8)(a) to state that the IME procedure applies “in cases of injuries that are not set forth in said schedule.” In our view, the General Assembly was merely making explicit that which was already implicit in the statute.
IT IS THEREFORE ORDERED that the ALJ’s orders dated July 24, 1996, and August 19, 1996, are set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
Copies of this decision were mailed September 3, 1997 to the following parties:
Loretta G. Archuleta, 3767 High Street, Denver, CO 80205
Gold Star Sausage Co., Inc., 2800 Walnut St., Denver, CO 80205-2236
Ginger Cook, TIG Fairmont Ins. Co., P.O. Box 17005, Denver, CO 80217
Peter E. Morgan, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Lydia W. Daugherty, Esq., One Plaza Tower, #1270, 6400 S. Fiddlers Green Circle Englewood, CO 80111 (For the Respondents)
By: _______________________________