W.C. No. 4-210-932Industrial Claim Appeals Office.
December 18, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Rumler (ALJ) which awarded claimant benefits for a heart attack. We affirm.
On review, the respondent presents three arguments. The respondent contends that the ALJ’s findings concerning unusual exertion and causation are not supported by the evidence. The respondent also asserts that the ALJ should have granted a motion to vacate the hearing or, alternatively, considered a medical report submitted after the hearing.
I.
The ALJ found that the heart attack was caused by unusual exertion which the claimant experienced while performing a training exercise in the course of his duties as a fire fighter. Specifically, the ALJ found that the claimant was a lieutenant fire fighter whose duties frequently involved going to the command center of a building and turning off the power, and responding to “false alarms.”
On the day of the heart attack, April 13, 1994, the claimant performed a timed training exercise during which he climbed a ladder wearing full fire fighting gear and carrying a power saw, and simulated cutting a hole in the roof of the building with the saw. The ALJ found that the weather was warm that day, and that the claimant had difficulty starting the power saw. Moreover, Mr. Richmeier, the claimant’s fellow fire fighter, testified that the exercise was very unusual in terms of the exertion required, and left him physically exhausted. (Tr. pp. 76-77, 90).
After the exercise, the claimant had difficulty breathing, was worn out and uncomfortable. Soon, the claimant became dizzy and nauseated, and was taken to a fire station where he was diagnosed as having a heart attack. The claimant was then rushed to the hospital.
On review, the respondent first contends that the record does not contain “competent” evidence that the claimant’s heart attack was caused by “unusual exertion” arising out of and in the course of employment. In support of this argument, the respondent points to the claimant’s testimony that he frequently engaged in an exercise known as “throwing ladders,” and that throwing ladders required more exertion than the April 13 exercise. (Tr. p. 56). The respondent also argues that the “undisputed” medical evidence proves that the claimant’s heart attack was caused by pre-existing heart disease, and not by any exertion which the claimant experienced on April 13. Finally, the respondent asserts that, even if the claimant made a prima facie showing of causation, this showing was overcome by its own evidence, including the report of Dr. Vigoda. We find no error.
Section 8-41-302(2), C.R.S. (1995 Cum. Supp.), provides that injury resulting from a heart attack is not compensable “unless it is shown by competent evidence that such heart attack was proximately caused by an unusual exertion arising out of and within the course of employment.” An “exertion” meets the statutory definition if it is “unusual in kind or quantity when considered in comparison to [the claimant’s] job history.”Vialpando v. Industrial Claim Appeals Office, 757 P.2d 1152 (Colo.App. 1988). This test does not require that exertion be different in nature from the employee’s usual work, and must be applied “to the employee’s work history rather than the work patterns of his profession in general.” Carr v. Industrial Commission, 709 P.2d 52 (Colo.App. 1985).
Moreover, the question of whether the claimant proved an “unusual exertion” is one of fact, and the ALJ’s order must be upheld if supported by substantial evidence. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); § 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993). To the extent the testimony of a particular witness contains inconsistencies, it is for the ALJ to resolve them. El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993).
The respondent’s argument notwithstanding, the record contains substantial evidence that the claimant experienced “unusual exertion” on April 13. Although the claimant himself testified to some facts which would support the inference that the April 13 exertion was not unusual compared to his ordinary training, he also testified to facts which would support a contrary inference. The ALJ resolved these contradictions in favor of the claimant. Moreover, Mr. Richmeier’s testimony supports the conclusion that the claimant’s primary duties were supervisory, and therefore, ordinarily required less exertion than the claimant experienced in performing the April 13 exercise.
It is true that the evidence might have supported contrary findings and conclusions. However, we decline the respondent’s invitation to substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The respondent’s assertion that the medical evidence negates the ALJ’s finding of causation is incorrect. A finding of causation must be based upon an examination of the totality of the circumstances, and need not be established by any expert medical testimony. Talbert v. Industrial Commission, 694 P.2d 864 (Colo.App. 1984). To the contrary, causation is itself a question of fact, and the ALJ’s order must be upheld if supported by substantial evidence. Apache Corp. v. Industrial Commission, supra.
Here, it is apparent that the ALJ evaluated the “totality of the circumstances” and found the requisite causal relationship between the exertion and the heart attack. The ALJ’s finding is supported by evidence that the claimant experienced the onset of symptoms from the heart attack immediately upon completion of the exercise, and rapidly progressed to full cardiac arrest. Moreover, the emergency room reports reflect that the claimant had been performing heavy exertion, and it may be inferred from this notation that the emergency room physicians considered the exertion relevant to the claimant’s diagnosis.
The respondent’s reliance on the report of Dr. Vigoda is misplaced. The ALJ did not admit or consider the report of Dr. Vigoda, nor did Dr. Vigoda testify at the hearing. For reasons stated below, the ALJ did not err in failing to consider Dr. Vigoda’s report.
The respondent’s argument that it rebutted the claimant’s case is without merit. The determination of whether the claimant carried his burden of proof, and whether the respondent overcame the claimant’s proof, are matters of fact for determination by the ALJ. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Because the ALJ’s order is supported by the evidence, we cannot substitute our judgment for hers concerning what the record does and does not prove.
Insofar as the respondent made other arguments, we find them to be without merit.
II.
The respondent next contends that the ALJ erred in denying its motion to vacate the hearing scheduled for February 16, 1995. As a corollary to this argument, the respondent argues that the ALJ erred in refusing to consider Dr. Vigoda’s a medical report, which the respondent submitted after the hearing. We find no error.
The record reveals the following. In early May, 1994, the respondents filed a “Notice of Contest” on the ground that the claimant’s heart attack was not work-related. In November 1994, the claimant filed an application for hearing. Thereafter, on November 23, 1994, the respondent mailed interrogatories to the claimant as provided in Rule of Procedure VIII(E)(1), 7 Code Colo. Reg. 1101-3 at 23. The interrogatories requested the claimant to identify persons having knowledge and information concerning the claimant’s medical condition.
The claimant failed to respond to the interrogatories within twenty days as required by Rule VIII(E)(1). Consequently, on December 29, 1994 the respondent filed a Motion to Compel Discovery. On January 9, 1995, the claimant responded that the requested discovery would be forthcoming “within the next few days.” Consequently, on January 23, 1995, the ALJ determined that “no action” would be taken on the motion to compel.
On January 19, 1995, the claimant provided the requested discovery including numerous medical reports. That same day, the respondent filed a Motion to Vacate Hearing stating that, in view of the claimant’s response to discovery, the respondent needed additional time to prepare for the hearing and have the claimant examined by a physician. The claimant responded that he had provided the medical reports to the respondent well within the twenty day deadline established by Rule of Procedure VIII(I), 7 Code Colo. Reg. 1101-3 at 26, and that the respondent had had ample time to prepare for the hearing. The ALJ denied the motion to vacate on February 1, 1995.
The matter then proceeded to hearing on February 16, 1995. At that time, the respondent did not renew its motion for a continuance, nor did it request the opportunity to submit post-hearing evidence. Nevertheless, after the ALJ entered a summary order determining that the claim was compensable, the respondent filed a request for the ALJ to consider a medical report authored by Dr. Vigoda. In that report, dated February 14, 1995, Dr. Vigoda opined that the heart attack was not related to the claimant’s employment. However, the ALJ struck the medical from the record on March 31, 1995, and entered her final order without considering the report.
As a general rule, the ALJ has considerable discretion in matters involving the timing and conduct of administrative hearings. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). For good cause shown, the ALJ may grant continuances or extend the date of the hearing for the taking of additional evidence. Section 8-43-207(i) and (j), C.R.S. (1995 Cum. Supp.). Because the ALJ’s decisions not to vacate the hearing or take additional evidence were discretionary, we may not interfere with them unless they were beyond the bounds of reason. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
We perceive no abuse of discretion in the ALJ’s denial of the motion to vacate the hearing. The respondent was aware of the fact that the claimant was asserting a compensable heart attack as of May 1994 when it filed a notice of contest. The respondent never explained of why it could not have sought a medical release and obtained the pertinent medical records long before the claimant ever filed the application for hearing. Had the respondent taken these preliminary steps, it would not have been pressed for time as the hearing approached. Further, although the claimant was tardy in making his response to the respondent’s interrogatories, the medical documentation was supplied to the respondent well in advance of the hearing, and within the time provided by Rule VIII(I). Moreover, the respondent’s motion to vacate the hearing did not specifically allege that the claimant was scheduled for an independent medical examination. Consequently, the ALJ was not apprised of the pending examination by Dr. Vigoda.
Neither do we perceive any abuse of discretion in the ALJ’s order refusing to consider Dr. Vigoda’s report after the hearing. It is true that one factor to be considered in determining whether to grant a continuance for the taking additional evidence is whether the additional evidence might have been “outcome determinative.” Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). However, there is no absolute right to a continuance, and the ALJ may evaluate whether a party exercised due diligence to obtain the evidence, as well as the inconvenience and expense to the opposing party if a continuance is granted.
Here, it cannot be denied that Dr. Vigoda’s report had the potential to be outcome determinative on the issue of causation. However, as the claimant points out, he was examined by Dr. Vigoda on February 14, prior to the hearing. Moreover, Dr. Vigoda’s report is dated February 14, 1995, and apparently existed prior to the hearing.
Moreover, as the ALJ pointed out in her order granting the motion to strike Dr. Vigoda’s report, counsel for the respondent never asserted at the time of the hearing that he desired a continuance to obtain and present additional evidence. As the ALJ found, Dr. Vigoda’s report was in existence at the time of the hearing, but respondent’s counsel did not make any effort to explain to the ALJ that additional evidence was needed and could be quickly obtained.
Under these circumstances, the ALJ reasonably concluded that the respondent failed to exercise due diligence to present Dr. Vigoda’s report. Therefore, the record supports the ALJ’s determination that the respondent failed to show good cause for the post-hearing submission.
IT IS THEREFORE ORDERED that the ALJ’s order, dated February 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 18, 1995 to the following parties:
Warren D. Bjorklund, 5665 W. 86th Ave., Arvada, CO 80003
Wayne E. Vaden, Assistant City Attorney, 1445 Cleveland Pl., #200, Denver, CO 80202
(For the Respondent)
Richard Uhrlaub, Adjuster, 1445 Cleveland Place, #200, Denver, CO 80202
Marshall A. Fogel, Esq., 1199 Bannock St., Denver, CO 80204
(For the Claimant)
By: ____________________