W.C. No. 4-364-480Industrial Claim Appeals Office.
August 21, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded the claimant permanent total disability (PTD) benefits. The respondents contend the ALJ erred in relying on the testimony of one of the claimant’s vocational experts because the expert did not recognize the correct legal standard for determining PTD. The respondents also argue the issue of PTD was not ripe for hearing because the claimant was not at maximum medical improvement (MMI), and because the respondents’ vocational rehabilitation plan was not yet complete. Finally, the respondents argue that ALJ unfairly limited the scope of redirect examination. We affirm.
The claimant sustained a compensable low back injury on December 15, 1997, and the treating physician placed the claimant at MMI on December 1, 1998. The claimant then underwent a Division-sponsored independent medical examination (DIME) on the issues of MMI and medical impairment. In May 1999, the DIME physician assigned a rating of 25 percent of the whole person, which included 10 percent impairment for depression.
In January 1999, the claimant underwent a functional capacity evaluation. The evaluator concluded the claimant can lift up to 10 pounds occasionally, stand or walk for two hours at one time, and sit for up to one-half hour at a time. The examiner also opined the claimant’s residual pain limits him to a four-hour workday, and sometimes renders him unable to perform any work at all. The claimant’s treating psychologist opined the claimant suffers from a pain disorder and depression which “markedly” limit his ability to understand and remember detailed instructions, maintain attention and concentration, work with others, and to function for an entire workday without psychologically based symptoms.
In October 2000, the respondents offered the claimant a program of vocational rehabilitation to be administered by vocational expert Macurak. Although there was no written plan, the claimant was to enroll at a vocational-technical center to obtain skills in operating business machines. Despite giving what the ALJ termed his “best effort,” the claimant failed, or failed to complete all but two of his first semester classes. Relying on the testimony of the claimant’s vocational experts, Mr. Wells and Mr. Van Iderstine, the ALJ found this vocational plan was “ill-conceived” and unsuccessful because it failed to integrate the claimant’s medical providers into the plan, failed to maintain satisfactory communication, and failed adequately to account for the claimant’s physical, emotional, and intellectual abilities to complete the plan.
Crediting the testimony of the claimant’s vocational experts, the ALJ found the claimant is unable to earn any wages in the same or other employment. The ALJ also concluded the respondents failed to carry their burden of proof to establish the claimant is capable of rehabilitation within the meaning of § 8-42-111(3), C.R.S. 2000.
I.
On review, the respondents first contend the ALJ erred in relying on the testimony of vocational expert Wells. The respondents argue that, contrary to Finding of Fact 11, Wells never testified the claimant was “incapable of earning any wages.” Further, the respondents argue that Wells incorrectly believed the legal standard for PTD was the claimant’s capacity to return to “suitable gainful employment,” rather than the ability to earn “any wages.” Thus, the respondents reason the ALJ erred in relying on Wells’ testimony to discredit Mr. Macurak’s testimony. We perceive no reversible error.
An order which contains an erroneous finding need not be set aside if the error is harmless and does not affect the parties’ substantial rights. Section 8-43-310, C.R.S. 2000; El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Although we agree with the respondents that vocational expert Wells did not testify the claimant was unable to earn any wages, that incorrect finding was harmless.
As the respondents argue, the current standard for PTD requires the claimant to prove an inability to earn any wages, and this is a stricter standard than prevailed prior to the 1991 amendments. Section 8-40-201(16.5)(a), C.R.S. 2000; Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). However, we do not perceive how the respondents were prejudiced by the ALJ’s incorrect finding that expert Wells opined the claimant was unable to earn any wages. As we read Finding of Fact 11, it concerns whether or not the claimant met hi initial burden of proof to establish that he is unable to earn any wages. Indeed, the last sentence of Finding of Fact 11 states the claimant “established by a preponderance of the evidence that he is unable to earn wages in the same or other employment.” As the ALJ pointed out, the respondents’ own vocational expert agreed the claimant is unable to earn any wages in the absence of successful vocational rehabilitation. Consequently, we do not perceive the ALJ’s incorrect finding concerning Wells’ exact testimony would have affected the outcome of the case on the issue of PTD.
Moreover, Conclusion of Law 2 reveals the ALJ applied the correct legal standard in determining whether the respondents carried their burden of proof to establish the claimant was not eligible for PTD benefits because he was capable of rehabilitation and refused an offer of rehabilitation designed to enable him to earn “any wages.” See Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991); Pacheco v. Environmental Chemical Corp., W.C. No. 4-287-84 (October 9, 1998) (§8-42-111(3) creates an affirmative defense to a prima facie case of permanent total disability). To the extent the ALJ relied upon the testimony of Wells when considering this issue, the ALJ did so to resolve specific factual disputes surrounding the adequacy of the vocational plan, not for the general proposition that the claimant is incapable of earning any wages. Finding of Fact 9.
II.
The respondents next contend the ALJ erred in addressing the issue of PTD because it was not “ripe” for hearing. In support, the respondents cite the report of one of the claimant’s treating physicians to the effect that the claimant is not at MMI because he needs a pain program. This report was issued after the DIME physician opined the claimant is at MMI. The respondents further argue vocational rehabilitation has “not run its course,” and the ALJ’s finding to the contrary is not supported by the evidence. We disagree with these arguments.
As a general matter, MMI exists when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. Section 8-40-201(11.5), C.R.S. 2000. Consequently, MMI represents the line of demarcation between temporary and permanent disability. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Dependents of Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26
(Colo.App. 1996). Under the current statutory scheme, MMI is initially determined by the treating physician, and subsequently by a DIME physician, if requested. The DIME physician’s finding concerning MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2000; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the opinion of the treating physician as to MMI is entitled to deference only when the DIME procedure has not been pursued. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Here, the respondents did not raise the issue of whether the claimant was at MMI until the date of the hearing itself. In fact, the only defense to PTD raised in the response to the application for hearing was the claimant’s “lack of cooperation with vocational rehabilitation” under § 8-42-111(3). Consequently, we perceive no abuse of discretion in the ALJ’s conclusion that the issue of MMI was resolved by the DIME physician, and the respondents did not timely challenge the DIME physician’s MMI determination prior to the hearing. (Tr. October 12, 2000, p. 7). See Rule of Procedure VIII (A) (5), 7 Code Colo. Reg. 1101-3 (party may not add an issue after the filing of the application or response except upon agreement of all parties, or approval of the ALJ for good cause shown).
The respondents assert they need not have challenged the DIME physician’s opinion concerning MMI because the opinion of the treating physician might be viewed as proof of a worsened condition subsequent to MMI. However, in our view, the ALJ refused to consider this issue for the same reason he declined to consider any challenge to the DIME physician’s MMI determination.
When the respondents’ counsel proposed the theory that the claimant’s condition worsened after the DIME physician placed the claimant at MMI, the ALJ inquired of counsel whether the respondents would be willing to reinstate temporary disability benefits. Counsel for the respondents replied that he had not “received confirmation from my client on that,” and indicated the respondents’ willingness to reinstate benefits would be dependent on further consultation with the treating physician. Claimant’s counsel then disputed the respondents’ right to challenge the date of MMI if they were unwilling to reinstate temporary disability benefits, and opined that under the circumstances, the only method for overcoming the DIME physician’s finding of MMI was a timely request to do so. (Tr. October 12, 2000, p. 6). The ALJ stated he “agreed” with the claimant’s position. (Tr. October 12, 2000, p. 7). Thus, it is implicit in the ALJ’s ruling that he concluded the respondents failed to show good cause for adding the issue of a worsened condition subsequent to MMI, just as they failed timely to raise the issue of overcoming the DIME physician’s finding of MMI. Considering the potential interruption of benefits, we cannot say the ALJ abused his discretion in declining to add the issue of a “worsened condition” on the date of the hearing.
The respondents next contend the issue of PTD was premature because the evidence does not support the ALJ’s finding that vocational rehabilitation has failed. We reject this contention for two reasons.
First, although an offer and acceptance of vocational rehabilitation entitles the claimant to temporary disability benefits under §8-42-105(1), C.R.S. 2000, the pendency of vocational rehabilitation does not preclude a finding the claimant is at MMI. See Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997). Neither does the pendency of vocational rehabilitation prevent the ALJ from determining if the claimant is permanently and totally disabled because the claimant is incapable of rehabilitation, or because the proffered vocational rehabilitation will not enable the claimant to earn any wages. As stated above, § 8-42-111(3) creates an affirmative defense to a claim for PTD, and the applicability of that defense is a question of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). Hence, there was no legal prohibition against determining the issue of PTD, even if vocational rehabilitation was ongoing. Cf. Francisco v. Jett Supply Co., W.C. No. 4-105-092
(August 19, 1996); Remek v. Adams County School District 50,
W.C. No. 3-938-393
(Colo.App. 1993) (ALJ did not unlawfully “terminate” vocational rehabilitation under predecessor to § 8-42-111(3) by considering issue of PTD).
Second, substantial evidence supports the ALJ’s determination that the vocational rehabilitation program initiated by the respondents failed and will not enable the claimant to earn any wages. We must uphold the ALJ’s pertinent findings of fact 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. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Here, the testimony of the claimant’s vocational experts, the medical evidence represented by the opinions of the treating physician and the results of the functional capacity evaluation, and the psychological opinions rendered by Dr. Young, fully support the ALJ’s finding that the effects of the injury prevent the claimant from successfully participating in the vocational rehabilitation program. Although there was conflicting evidence, the ALJ resolved the conflicts in favor of the claimant. Consequently, the record contains substantial evidence to support the ALJ’s finding that the respondents failed to meet their burden of proof under § 8-42-111(3).
III.
The respondents next contend the ALJ unfairly restricted redirect examination of the respondents’ vocational expert. The respondents assert the ALJ limited redirect examination of the respondents’ expert to five minutes, but applied no similar limitation to any of the claimant’s witnesses. We perceive no error.
It is certainly true that due process entitles parties to a fair opportunity to present evidence in their own behalf. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the ALJ has discretionary authority to limit “cumulative or repetitive proof or examination.” Section 8-43-207(1)(d), C.R.S. 2000.
Here, the respondents’ assertion to the contrary notwithstanding, the ALJ limited both parties’ opportunity to conduct redirect examination of their witnesses. Indeed, at the close of cross-examination of the claimant’s first witness, the ALJ stated that, “due to time constraints this afternoon, I’m going to limit redirect and recross-examination of all witnesses in this matter to five minutes.” (Tr. October 12, 2000, p. 55). Further, the ALJ enforced the five minute limitation against claimant’s attorney on two occasions prior to the time the limitation was enforced against respondents’ counsel. (Tr. October 12, 2000, p. 117; Tr. November 28, 2000, p. 60). Thus, we perceive no inequity or partiality in the ALJ’s application of the five minute limitation.
Moreover, we perceive no abuse of discretion in the ALJ’s enforcement of the limitation. The ALJ apparently based the limit on the amount of time available for the hearings, while affording both parties ample time to present their cases through direct examination of the witnesses. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988) (ALJ afforded substantial discretion in the conduct of evidentiary proceedings). Further, the respondents made no offer of proof concerning what evidence they would have presented on redirect examination of their vocational expert. Therefore, we have no basis for concluding the ALJ abused his discretion in limiting the amount of time for redirect examination. See C.R.E. 103(a)(2) (error may not be predicated on the exclusion of evidence unless the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 19, 2001, 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 August 21, 2001 to the following parties:
Marshall Boyd, 69905 Highway 50 East, #260, Montrose, CO 81401
Allison Construction, P. O. Box 498, Ridgeway, CO 81432
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Luke A. Brennan, Esq., 123 N. 7th St., #130, P. O. Box 579, Grand Junction, CO 81502-0579 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)
BY: A. Pendroy