W.C. No. 4-366-864Industrial Claim Appeals Office.
January 21, 2003
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Jones (ALJ). The claimant contends the ALJ erred in excluding rebuttal evidence, improperly treated the claim as “closed,” and applied an improper burden of proof in determining whether the claimant proved a worsened condition. We affirm.
A procedural history is necessary to understand the issues in this case. On November 6, 1997, the claimant sustained injuries to his left lower extremity, right shoulder, cervical region, and lumbar region in a compensable accident. A treating physician placed the claimant at maximum medical improvement (MMI) with no medical impairment on January 12, 1998. The claimant underwent a Division-sponsored independent medical examination (DIME) in May 1998, and the DIME physician opined the claimant was not at MMI for the neck and low back injuries. Thereafter, the claimant underwent additional treatment by Dr. Centeno.
On August 5, 1998, Dr. Centeno placed the claimant at MMI for the second time and assigned a 19 percent whole person impairment rating based on impairment of the cervical and lumbar regions. The claimant again underwent a DIME. On November 13, 1998, the DIME physician issued a report agreeing with the August 5 date of MMI, and assigning a 12 percent whole person impairment rating based on impairment of the cervical and lumbar spine. In February 1999 the respondents filed a Final Admission of Liability (FAL) based on the DIME physician’s report. Apparently, the claimant filed a timely objection to the FAL.
In May 2001 the claimant filed an application for hearing seeking additional medical benefits, temporary disability benefits, and an increase in the average weekly wage. In January 2002, the matter proceeded to hearing before the ALJ. At the commencement of the hearing the claimant’s attorney advised the ALJ that the claimant was not disputing the DIME physician’s MMI determination. Rather the claimant’s theory of the case was that his condition worsened after MMI so as to require additional medical treatment and temporary disability benefits. (Tr. pp. 3-4).
At the hearing, the claimant testified concerning the alleged worsening of his condition after being placed at MMI. The respondents presented the testimony of Dr. Lesnak, who examined the claimant on January 8, 1998, and again in July 2001. Dr. Lesnak opined the claimant demonstrated no objective evidence of a worsened condition which could be attributed to the 1997 industrial injury. Following Dr. Lesnak’s testimony, the claimant attempted to call Dr. Centeno as a “rebuttal witness,” but respondents’ counsel objected. The court sustained the objection to the testimony.
On March 7, 2002, the ALJ entered “Specific Findings of Fact, Conclusions Of Law And Order.” In this order the ALJ stated the issue was whether the claimant overcame the DIME physician’s finding of MMI by clear and convincing evidence. Relying principally on the testimony of Dr. Lesnak and the opinions of the DIME physician and Dr. Centeno, the ALJ determined the claimant failed to overcome the DIME physician’s finding that the claimant reached MMI on August 5, 1998. Consequently, the ALJ denied and dismissed the claim for additional benefits.
The claimant filed a timely petition to review the March 7 order. The petition alleged the ALJ’s order incorrectly framed the issue as a challenge to the DIME physician’s finding of MMI. The claimant argued the actual issue was whether he proved a worsened condition caused by the industrial injury, and that issue was subject to the preponderance of the evidence standard. Further, the claimant asserted the ALJ failed to address the issue of average weekly wage, and improperly excluded the testimony of Dr. Centeno. A briefing schedule was issued by the Division of Administrative Hearings (DOAH) on April 30, 2002, but neither the claimant nor the respondents filed a timely brief.
On October 8, 2002, counsel for the respondents delivered a letter to DOAH stating the respondents did not intend to file a brief, but suggesting the ALJ enter a supplemental order because “not all the issues were addressed” in the March 7 order. The respondents submitted a proposed supplemental order .
On October 9, 2002, the ALJ entered the Supplemental Order submitted by the respondents. In the Supplemental Order the ALJ identified the issues as whether the claimant met the burden of proof to show a worsened condition, temporary disability benefits, authorization for medical treatment, and average weekly wage. The order incorporated the findings of fact in the March 7 order. Further, citing the testimony of Dr. Lesnak, the ALJ found the claimant failed to prove a worsened condition which caused the need for medical treatment or an entitlement to additional temporary disability benefits. The ALJ further found the claimant failed to prove a right to an increase in the admitted average weekly wage, and that certain physicians who treated the claimant in the State of Washington are not authorized.
The claimant filed a timely petition to review the Supplemental Order and a supporting brief. The respondents filed an answer brief and the matter was transmitted to us and received in this office on December 4, 2002.
I.
As an initial matter, we note the ALJ technically lacked jurisdiction to issue the Supplemental Order. Section 8-43-301(4), C.R.S. 2002, provides that after “the briefs are filed or the time for filing has run,” the ALJ “shall have thirty days to enter a supplemental order or transmit the file to the industrial claim appeals office for review.” (Emphasis added). This time limit is jurisdictional, and the ALJ may not enter a valid supplemental order after the time has run. Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989).
Thus, under ordinary circumstances, it would be necessary to disregard the Supplemental Order and consider only the claimant’s petition to review the March 7 order. However, under the unique circumstances present here, we conclude such action is unnecessary. Were we to disregard the Supplemental Order and consider the petition to review the March 7 order, we would be required to remand the matter for a new order because, as the claimant argued and the respondents conceded in their October 8 letter, the March 7 order did not consider the issues actually framed by the parties. The ALJ recognized this problem and entered the Supplemental Order currently before us. Thus, we are able to ascertain how the ALJ would rule if we went through the formality of remanding the matter to reconsider the March 7 order. Consequently, the jurisdictional issue is moot because a remand would not result in any material relief to the claimant.
II.
The claimant next contends the ALJ erred in excluding the “rebuttal testimony” of Dr. Centeno. The claimant argues that he was entitled to present his case and the ALJ abused her discretion in excluding this proper rebuttal testimony. We are not persuaded.
The decision of whether to admit rebuttal testimony is committed to the sound discretion of the ALJ, and we may not interfere with the decision to exclude testimony unless an abuse is shown. In re Marriage of Antuna, 8 P.3d 589 (Colo.App. 2000). Further, the ALJ enjoys wide discretion in the conduct of evidentiary proceedings. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). An abuse of discretion is not shown unless the ALJ’s ruling is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The purpose of rebuttal testimony is to explain, counteract, or disprove the proof of the opposing party. Such testimony may be admitted in rebuttal even if it might have supported the proponent’s case in chief People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973). However, an ALJ may consider whether the admission of such testimony would provide an unfair advantage or prejudice the opposing party. See Taylor v. Mazzola, 150 Colo. 553, 375 P.2d 96 (1962).
As an initial matter, we note the claimant failed to make a sufficient offer of proof concerning the nature of Dr. Centeno’s testimony. Counsel for the claimant stated only that Dr. Centeno “would have contrary facts to report than what had been reported today.” (Tr. P. 137). Although we surmise that Dr. Centeno disagreed with some aspect of Dr. Lesnak’s testimony, we are left to speculate concerning the nature and basis of the disagreement. Under these circumstances, error may not be predicated on the exclusion of the testimony. C.R.E. 103(a)(2).
In any event, we perceive no abuse of discretion in the ALJ’s ruling. Counsel for the respondents represented to the ALJ that she became aware, on the day before the hearing, that the claimant had just visited Dr. Centeno. Counsel further represented that claimant’s counsel had not responded to her efforts to learn of Dr. Centeno’s proposed testimony. (Tr. P. 136; respondents’ counsel’s letters to claimant’s counsel dated December 11, 2001, and January 9, 2002). Under these circumstances, the ALJ reasonably concluded that permitting Dr. Centeno to testify to his opinions after the respondents had presented their case in chief (consisting of Dr. Lesnak’s testimony) ran a substantial risk of prejudice and unfair surprise to the respondents. Indeed, it might reasonably be inferred the claimant was attempting to bypass the usual order of proof in an effort to gain an advantage in the presentation of the evidence.
III.
The claimant next contends the ALJ erred in treating the claim as “closed” and, in effect, terminating the claimant’s rights to ongoing medical benefits after the date of MMI. We reject this argument.
The ALJ did not treat the claim as “closed.” Rather, the Supplemental Order addressed the claimant’s contention that after the date of MMI the claimant’s condition worsened entitling him to additional temporary disability benefits and medical benefits designed to improve his condition. In view of this contention the ALJ was required to determine whether there was a change in any injury-related condition such that the claimant’s condition was no longer stable, and, if so, whether the change caused an additional loss of wages. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). The ALJ was also required to determine whether the claimant needed additional treatment to improve or cure a deterioration of any injury-related condition, or whether the claimant’s condition remained stable and any treatment was merely for the purpose of maintaining the claimant at MMI or relieving ongoing symptoms. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). It is true these determinations are similar to determinations which would be made in the event the claim had been closed and the claimant filed a petition to reopen based on a worsened condition. However, the ALJ did not hold that the claimant was required to file a petition to reopen in order to receive additional benefits.
The claimant’s contention that the ALJ’s order had the effect of denying him his right to ongoing medical benefits after MMI is without merit. The respondents’ FAL admitted for medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The Supplemental Order expressly approves the FAL, and at the hearing the respondents reaffirmed their obligation to pay Grover medical benefits. Of course, the respondents remain free to contest the reasonableness of particular medical benefits authorization for treatment, and whether or not such benefits are causally related to the industrial injury. Id. at 712. That is what occurred in this case.
IV.
The claimant’s final contention is the ALJ incorrectly applied the “clear and convincing” standard of proof in determining whether he proved a worsened condition caused by the industrial injury. We are not persuaded.
The claimant correctly states that he was not required to prove an injury-related worsening of condition by clear and convincing evidence. This is true because the clear and convincing standard and the DIME process itself do not apply when determining whether there has been a worsening of condition after MMI. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The claimant must prove an injury-related worsening of condition by a preponderance of the evidence. Section 8-43-201, C.R.S. 2002.
The claimant argues the ALJ erroneously applied the elevated standard of clear and convincing evidence in the Supplemental Order. However, the only mention of that standard occurs in the March 7 order where the ALJ was discussing whether the claimant overcame the DIME physician’s opinion concerning the date of MMI. The Supplemental Order merely states the claimant “failed to sustain his burden of proof in showing that his medical condition in relationship to the industrial injury worsened.” The ALJ also stated that Dr. Lesnak’s opinions were found credible on this issue. (Supplemental Order, Finding of Fact 13, Conclusion of Law 3).
Thus, the ALJ recognized the distinction between overcoming a DIME physician’s opinion concerning the date of MMI, and proving a worsened condition after MMI. In the absence of any discernible evidence to the contrary, we decline to assume the ALJ applied an incorrect burden of proof when entering the Supplemental Order. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (presumption exists the ALJ correctly applied statute to facts). This is especially true because the ALJ entered the Supplemental Order after the claimant’s petition to review the March 7 order in which the claimant raised the burden of proof issue.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated October 9, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______January 21, 2003_______ to the following parties:
Gregory S. Artz, 1118 Sanford Ave., Richland, WA 99352
Schwan’s Sales Enterprises, 115 W. College Dr., Marshall, MN 56258-1747
Continental Casualty Company, c/o Jody Nelson, RSKCo, P.O. Box 5408, Denver, CO 80217-5408
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: _________A. Hurtado_____________