W.C. No. 3-101-431.Industrial Claim Appeals Office.
January 23. 2007.
FINAL ORDER
IN THE MATTER OF THE CLAIM OF WENDY BROWNSON-RAUSIN, Claimant v. VALLEY VIEW HOSPITAL, Employer and COLORADO HOSPITAL ASSOCIATION, Insurer, Respondents.
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 24, 2006 which denied the claimant’s request for permanent total disability benefits and affirmed an order of a Prehearing Administrative Law Judge’s order (PALJ) which had denied a motion for protective order regarding a functional capacity evaluation (FCE). We affirm.
This matter has been before us previously. The claimant had sought review of an order of the ALJ’s dated May 18, 2006 contending that the ALJ had erred in admitting into evidence a August 15, 2005 (FCE). The claimant had filed a motion for protective order regarding the FCE in which the claimant had requested that an occupational therapist be allowed to observe the FCE. In an order dated June 8, 2005 Prehearing Administrative Law Judge Purdie denied the motion. The ALJ admitted the FCE, over objection, into evidence at the hearing. The ALJ determined that the PALJ’s order was an order of the Director of the Division of Workers’ Compensation and was not subject to review by the ALJ. We held that the PALJ’s order was properly reviewable by an ALJ and remanded the order for the ALJ to review the PALJ’s order on the issue of an observer at the FCE.
On remand the ALJ in reviewing the PALJ’s order made the following pertinent findings of fact and determinations. Under C.R.C.P. 26 the PALJ had discretion to allow an occupational therapist chosen by the claimant to be present during the examination. The PALJ did not allow the occupational therapist to be present. The claimant argued that an occupational therapist observer would not obstruct the FCE, would allow for higher quality information to be presented to the ALJ concerning the testing techniques used, and that an appropriate observer might insure that improper techniques were not used. The ALJ determined that the claimant had failed to show that, under the totality of the circumstances, the PALJ order exceeded the bonds of reason in denying the motion for a protective order. The ALJ found the claimant had failed to show sufficient prejudice to constitute reversible error even if the PALJ had abused her discretion. The ALJ further found that the claimant had not met her burden to show either an abuse of discretion or sufficient prejudice to constitute reversible error.
The ALJ further determined that the report from the occupational therapist was admissible without foundation under § 8-43-209, C.R.S. 2006 even if the therapist used improper techniques in her examination of the claimant. The ALJ determined that even if the PALJ had abused her discretion the report would not be excluded. The ALJ found that the PALJ did not err in denying the claimant’s request for a protective order and therefore the Claimant’s objection to the report was overruled and the exhibit was admitted. The ALJ therefore again denied the claimant’s request for permanent total disability benefits.
We note initially that the respondents have objected to an affidavit attached to the claimant’s brief in support of petition to review, since the affidavit was not presented at the hearing. We refuse to consider the factual assertions raised by the claimant for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) Voisinetv. Industrial Claim Appeals Office, 757 P.2d 171 (Colo.App. 1988).
On appeal the claimant first contends that the ALJ erred in admitting the FCE report because the evaluation was conducted in violation of the claimant’s rights under § 8-43-404 C.R.S. 2006. We disagree.
As we stated in our previous order on this matter, under 8-43-207.5, C.R.S. 2006, a prehearing conference may be held on an issue of discovery. The PALJ has wide discretion in determining whether a party has established good cause to limit discovery. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not disturb an order on discovery in the absence of an abuse of discretion. Robertson v. Chicago Creek Roads, Inc. W. C. No. 4-388-293 (April 3, 2001); see Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986) Hoffman v. United Airlines, Inc. W. C. No. 4-991-822 (September 23, 2002). The legal standard on review of an alleged abuse of discretion is whether the order is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here the ALJ determined that the claimant had failed to show that, under the totality of the circumstances, the PALJ’s order exceeded the bonds of reason in denying the motion for a protective order. The ALJ noted that the claimant could have testified, or the claimant could have compelled the occupational therapist selected by the respondents to testify as to the techniques used, and the claimant could have called her own occupational therapist to testify as to any improper techniques used by the respondent’s occupational therapist. We perceive no basis on which to interfere with the ALJ’s determination.
We agree with the ALJ that § 8-43-404(2) does not, as suggested by the claimant, limit the examination to one conducted by a physician when the examination is a “vocational evaluation”. An occupational therapist has expertise to determine the physical capabilities and limitations of a claimant. Such information and expertise is a necessary part of a vocational evaluation and the FCE in this case was used by the respondents’ vocational expert. The ALJ determined and we agree that the respondents did have the right under section 8-43-404(a), C.R.S. 2006 to request the claimant to submit to an examination by an occupational therapist. At any rate the claimant did not contest the respondents’ right to arrange for the FCE but only requested the presence of an occupational therapist as an observer at the scheduled FCE.
The ALJ determined that under § 8-43-404(2) the claimant is entitled to have a physician present at any examination and permits a chiropractor to be present if the examination is conducted by a chiropractor but that the section does not permit an occupational therapist to be present no matter who is conducting the evaluation. Therefore, The ALJ found that the claimant was not entitled to have her occupational therapist present at the respondents’ vocational evaluation. However, because we affirm the ALJ’s determination that the PALJ did not abuse her discretion in her order on discovery it is unnecessary to address the issue of whether under § 8-43-404(2) the claimant as a matter of law is entitled to have an occupational therapist present during the respondents’ vocational evaluation under any circumstances.
The claimant next contends that the ALJ admitted over objection, videotapes of surveillance conducted by the respondents without proper foundation. We previously ruled on this matter in our October 3, 2006 order and see no reason to depart from our determination that the ALJ did not abuse his discretion in allowing into evidence the surveillance videotapes.
The claimant next argues that the ALJ applied an improper standard in evaluating the evidence on the issue of whether the claimant should receive permanent total disability benefits. We disagree.
The ALJ in essence incorporated by reference his order of May 18, 2006 in the order presently under review. The ALJ, in our opinion recited the correct general rales applying to determination of permanent total disability. See May 18, 2006, Findings of Fact, Conclusions of Law, and Order at 12 ¶ 2.
The claimant presents several alleged examples in support of the argument that the ALJ applied an improper standard in evaluating the evidence in his denial of the claimant’s request for permanent total disability. The claimant contends that the ALJ erred in crediting that the respondents’ vocational expert’s opinion that the claimant’s need to catheterize herself should not prevent the claimant’s return to work. The claimant further contends that the ALJ erred in finding that the claimant’s leg weakness resulting in falls are not so frequent as to cause the claimant to be unemployable. The claimant argues that the ALJ’s credibility findings are in error as a matter of law because he discriminated against the claimant because she has an exaggerated response to pain. We perceive no basis on which to interfere with the ALJ’s determination.
Section 8-40-201(16.5)(a), C.R.S. 2006, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained his burden of proof, the ALJ may consider a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, supra.
Because the issue of permanent total disability is largely factual, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
Dr. Worwag performed an independent medical examination of the claimant and noted multiple psychosomatic complaints and non-organic findings Exhibit L. The Division-sponsored independent medical examination was conducted by Dr. Scott. The DIME physician noted components of symptom magnification and delayed recovery. Exhibit B. Dr. Stieg opined that the claimant was consciously exaggerating her symptoms, and it was anything but clear that the claimant cannot be employed competitively. Exhibits E CC. Dr. Kleinman testified that the claimant had invalid findings on physical examination and not only does she have a combination of physical illness, somatization and a factitious disorder, but there may be some malingering as well. Tr. 89. Dr. Kleinman testified, from a psychiatric perspective, the claimant is capable of returning to work. Tr.93 The ALJ found the opinion of Dr. Kleinman to be credible and persuasive. Dr. Parry testified that catheterization, in and of itself would not keep the claimant from working. Parry Depo. at 35. The respondent’s vocational expert performed a vocational assessment and testified at hearing concluding that jobs exist in the claimant’s labor market that are within her restrictions and abilities. Tr. 37.
Here, the ALJ’s factual determinations are amply supported by substantial evidence in the vocational and medical expert testimony he found persuasive, and the findings support the conclusion that the claimant is not permanently totally disabled. Therefore, the claimant has failed to establish grounds on which to disturb the ALJ’s findings and conclusions concerning permanent total disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 24, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________
Thomas Schrant ___________________________________
Robert M. Socolofsky
Wendy Brownson-Rausin, 0081 County Road 264, Rifle, CO 81650
Colorado Hospital Association Trust, Support Services, Mary Ann Donelson, 7335 E. Orchard Road, Suite 200, Greenwood Village, CO 80111
Timothy Quinn, Esq., 3515 So. Tamarac Drive, #200, Denver, CO 80237 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)