W.C. No. 4-345-378Industrial Claim Appeals Office.
July 16, 2001
FINAL ORDER
The claimant seeks review of orders of Administrative Law Judge Schulman (ALJ) which denied workers’ compensation benefits for a right ankle injury. We affirm.
On January 29, 1997, the claimant suffered injuries when she caught her foot on a chair leg and fell. The respondent admitted liability for injuries to the claimant’s right thumb and left knee. The respondent also admitted liability for a psychological injury. However, the respondent denied liability for treatment of the claimant’s right ankle problems.
At maximum medical improvement, the claimant underwent a Division-sponsored independent medical examination (DIME) by Dr. Shaw. The DIME assigned a whole person impairment rating due to permanent mental impairment and medical impairment of the left knee, thumb, and wrist. However, based upon the absence of any medical record showing right ankle problems prior to June 11, 1997, Dr. Shaw declined to attribute the right ankle problems to the industrial injury. According to Dr. Shaw, “a direct injury to the lateral ankle ligaments sustained at the time of the fall would likely have resulted in complaints noted by providers.” Therefore, Dr. Shaw did not include a rating for permanent impairment to the right ankle.
The claimant subsequently applied for a hearing to determine compensability of the ankle problems and requested an order requiring the respondent to pay temporary disability and medical benefits on account of right ankle surgery. The hearing was held on May 24, 2000.
In an order dated October 27, 2000, the ALJ found the DIME report “extremely detailed and comprehensive.” (Finding of Fact 12a) Giving greatest weight to Dr. Shaw’s opinions, the ALJ found the claimant failed to overcome by clear and convincing evidence the DIME physician’s opinion that the industrial injury did not cause the right ankle condition. Therefore, the ALJ denied and dismissed the claim for workers’ compensation benefits in connection with surgery on the right ankle.
The claimant filed a petition to review and a motion for reconsideration based upon additional medical evidence. On December 5, 2000, the ALJ denied the motion to reconsider. The ALJ found the claimant failed to “establish any persuasive basis” for the late submission of the proffered documents. The claimant then filed a petition to review the December 5 order.
I.
On review, the claimant first contends the ALJ misapplied the burden of proof by requiring the claimant to overcome the DIME physician’s opinion on the cause of the right ankle problems by “clear and convincing evidence.” The claimant contends that because the issue was “compensability” she was only required to prove causation by a preponderance of evidence.
The respondent contends the claimant waived this argument. We agree with the respondent and, therefore, we do not consider whether the ALJ misapplied the burden of proof.
The claimant may not take one position before the ALJ and argue a contrary position on appeal. Schlage Lock v. Lahr, 870 P.2d 615
(Colo.App. 1993). Neither may the claimant complain of error she invited the ALJ to commi . Jacobs v. Commonwealth Highland Theaters, Inc., 738 P.2d 6 (Colo.App. 1986).
At the commencement of the hearing, the following exchange occurred.
ALJ [to claimant’s counsel]: [Y]ou are not contesting the fact that you have the burden by clear and convincing evidence are you?
Claimant’s counsel: No, I am not.
ALJ: I just wondered.
Claimant’s counsel: I’m-all I am saying, the best person to know about what was going on is both the claimant and her physician, who both indicate that there was an injury to what she is going to describe to you as a right foot — and doctors describe — as a right ankle. And that we believe that that is overcoming by clear and convincing evidence.” (Tr. pp. 9-10).
Accordingly, the record reveals that the claimant conceded before the ALJ that the issue of compensability was governed by the “clear and convincing evidence” standard. Therefore, we shall not consider the claimant’s arguments to the contrary on review. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131
(Colo.App. 1994).
II.
Next, the claimant contends the ALJ erred by giving the DIME physician’s opinions greater weight than the opinions of the treating physician. The claimant contends that the treating physician is in a better position than the DIME physician to assess the cause of the claimant’s right ankle problems. In support, the claimant relies on Dr. Perloff’s statement that he treated the claimant for complaints of right ankle pain close to the date of the industrial injury even though the medical reports do not reflect that treatment.
Where the DIME physician’s opinions are inconsistent with the opinions of the treating physician, it is the ALJ’s prerogative to resolve the conflict based upon her assessment of the credibility and probative weight if the medical opinions. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We may not substitute our judgment for that of the ALJ in this regard. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Consequently, the claimant’s argument does not establish a basis which affords us grounds to interfere with the ALJ’s order. Section 8-43-301(8), C.R.S. 2000.
III.
Finally, the claimant contends the ALJ erred in refusing to accept the treating physicians’ supplemental reports. We perceive no reversible error.
An ALJ was wide discretion to determine whether, after the apparent conclusion of the proceedings , it is appropriate to reopen the matter for the taking of additional evidence. Section 8-43-207(1)(j), C.R.S. 200 ; § 8-43-301(5), C.R.S. 2000; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The legal standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ’s determination exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Where a motion to reopen the record is based upon a desire to present “newly discovered evidence,” it is proper for the ALJ to consider whether the evidence could have been discovered prior to the hearing through the exercise of reasonable diligence. Kennedy v. Bailey, 169 Col. 43, 453 P.2d 808 (1969). Reasonable diligence is established where the proponent of the motion for a new trial demonstrates that the new evidence was not only unknown prior to the first hearing, but could not have been timely discovered through reasonable efforts. Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465 (1936). The ALJ may also consider whether the proffered evidence is likely to be outcome determinative Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987).
Here, the claimant sought to reopen the record to add new medical reports from Dr. Perloff and Dr. Bruck. In particular, the claimant sought to introduce a November 10, 2000 letter from Dr. Perloff which purportedly showed that Dr. Perloff treated the claimant for an ankle injury “soon after” the industrial injury. The claimant also sought to submit a report dated November 9, 2000, from Dr. Bruck which allegedly indicated that Dr. Bruck performed surgery on the claimant’s right ankle for a problem that began with the industrial injury.
It is apparent that the proffered documents were not created until after the ALJ issued her order, and the claimant’s motion for reconsideration did not indicate why the new evidence was not obtained previously. Consequently, we perceive no error in the ALJ’s determination that the claimant failed to establish any “persuasive basis” for the late submission of this evidence.
Moreover, in denying the claim the ALJ considered a 1999 report where Dr. Perloff stated that he treated the claimant for an ankle problem right after the industrial injury even though there was no written record of that treatment. The ALJ was not persuaded that Dr. Perloff’s general statement two years after the injury sufficiently established that he treated the claimant’s ankle sufficiently close in time to the industrial injury. (Finding of Fact 12e). Because the proffered evidence essentially reflects the treating physicians’ recollection of providing treatment for the right ankle shortly after the injury, the evidence is not inconsistent with Dr. Shaw’s assumption that there were no medical reports which reflect a temporal relationship between the industrial injury and the onset of right ankle treatment. Under these circumstances, we cannot say the ALJ abused her discretion in denying the claimant’s motion to reopen the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 27, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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 July 16, 2001 to the following parties:
Angelina P. Broughton, 5061 W. 34th Ave., Denver, CO 80212
Rami Mayer, Kaiser Permanente, 2500 S. Havana, Denver, CO 80014
Kathryn Tveit, RSKCo, P. O. Box 5307, Denver, CO 80217-5307
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Jeffrey C. Fleischner, Esq., 1525 Josephine St., Denver, CO 80206 (For Respondent)
BY: A. Pendroy