W.C. No. 4-491-549Industrial Claim Appeals Office.
February 5, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) insofar as it denied the claim for permanent total disability (PTD) benefits. The claimant contends the ALJ’s findings are contradictory concerning the cause of the claimant’s disability. The claimant also alleges the ALJ improperly excluded relevant testimony and abused her discretion by refusing to permit a post-hearing deposition. We affirm.
The claimant, who worked in the employer’s meat packing plant, sustained admitted industrial injuries to her upper extremities in July and September 2000. The claimant reported to the treating physician, Dr. Thiel, that she experienced pain in both shoulders and down the arms to the elbow. The claimant was placed at maximum medical improvement (MMI) on November 21, 2000, and the treating physician reported the claimant’s symptoms were resolved. He further imposed permanent restrictions which precluded the claimant from returning to work at the plant, but opined these restrictions were not work-related.
The claimant underwent a Division-sponsored independent medical examination (DIME) on the issues of MMI and impairment. The DIME physician opined the claimant’s industrial injuries included bilateral shoulder tendinitis and bursitis, and bilateral wrist tendinitis. According to the DIME physician, these conditions had resolved by the date of MMI, November 21, 2000. However, the physician rated the claimant under the cumulative trauma guidelines, assessing 12 percent impairment of each upper extremity (UE), which converted to a 14 percent whole person impairment. The DIME physician’s report does not discuss the imposition of any permanent restrictions. The respondent filed a final admission of liability based on the DIME physician’s scheduled UE ratings.
The claimant returned to Dr. Thiel in August 2001, reporting pain in her neck, back, both shoulders, and arms. On October 3, 2001, Dr. Thiel issued a note opining the claimant’s symptoms were probably caused by non-work related inflammatory arthritis. At the hearing, Dr. Thiel testified that the claimant’s permanent restrictions, including the restriction against overhead work, are most probably related to personal health problems of a metabolic, physiologic, or inflammatory origin. Dr. Thiel doubted that cumulative trauma could explain the claimant’s symptoms in the summer of 2001 because she had not worked since being placed at MMI in November 2000.
The matter proceeded to hearing on the claimant’s request to have the scheduled impairments converted to a whole person impairment rating, and the claim for PTD benefits. The ALJ agreed that the scheduled impairment ratings should be converted to a whole person rating, finding that the claimant experiences pain in her arms, shoulders, and neck when she reaches overhead. The ALJ determined that these symptoms reflect functional impairment to parts of the body not found on the schedule. (Finding of Fact 12; Conclusion of Law 6).
However, the ALJ denied the claim for PTD benefits. Crediting the opinion of Dr. Thiel, the ALJ found the claimant failed to prove that her permanent restrictions, and hence her disability, are caused by the industrial injury.
I.
On review, the claimant contends the ALJ’s finding that the claimant has functional impairment beyond the arm at the shoulder, as reflected by neck and shoulder pain, is inconsistent with the finding that the claimant failed to prove any work-related restrictions. We disagree with this argument.
In this case, the respondent admitted the claimant sustained bilateral UE impairments. In order to convert the UE ratings to a whole person rating, the claimant was merely required to show by preponderance of the evidence that the UE impairment functionally impaired a part of the body not found on the schedule of disabilities. As the ALJ recognized, functional impairment may be evidenced by pain that limits use of a part of the body. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996); Valles v. Arrow Moving Storage,
W.C. No. 4-265-129 (October 22, 1998).
In contrast, to receive PTD benefits the claimant is required to prove that the industrial injury constitutes a significant cause of her inability to earn any wages. Section 8-40-201(16.5)(a), C.R.S. 2003; Seifried v. Industrial Claim Appeals Office, 736 P.2d 1262 (Colo.App. 1986). Determination of this issue is one of fact, and requires the ALJ to “ascertain the nature and extent of the claimant’s residual impairment from the industrial injury.” Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 869 (Colo.App. 2001). A finding of PTD contemplates that the impact of the injury has, in the context of the claimant’s individual “human factors,” made it unlikely the claimant will obtain and maintain any employment Id. at 866.
Thus, as the respondent argues, there is a significant difference between proof of “functional impairment” and PTD. Determination of functional impairment focuses on the physiological question of which part of the body sustained the “ultimate loss.” Strauch v. Industrial Claim Appeals Office, supra. This a distinct issue from whether or not the residual consequences of the industrial injury have contributed to the claimant’s permanent inability to earn any wages. See Garcia v. Rockwell International, W.C. No. 3-820-915 (July 27, 1998) aff’d., Garcia v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1598, April 15, 1999) (not selected for publication).
The ALJ’s finding that the claimant’s UE impairments involved functional impairment beyond the arm at the shoulder did not require the ALJ to conclude that those impairments constituted a significant cause of the claimant’s PTD. The mere fact that lifting the arms can cause pain does not necessarily equate to disability, nor does it require the conclusion that the claimant’s disabling symptoms involving numerous areas of the body were caused by the industrial injury. Hence, there is no inherent inconsistency in the findings.
II.
The claimant next contends the ALJ erred in sustaining an objection to the testimony of a union official. The official, who “deals with injured workers” at the employer’s plant, was asked about his “experience with workers who have a recurring occupational disease” as opposed to an accident. Respondent’s counsel objected on relevance grounds, and the ALJ sustained the objection. Claimant’s counsel made an offer of proof that the union official would testify that in his experience “Dr. Thiel, after finishing treatment, will declare the problem nonwork-related.” (Tr. Pp. 70-71).
The claimant asserts this testimony was relevant. However, the ALJ has wide discretion in determining whether testimony is relevant. People v. Lowe, 660 P.2d 1261 (Colo. 1983). Consequently, we will not interfere with the ruling unless an abuse is shown, and we perceive none here.
Generally, evidence of specific instances of conduct by a witness for the purpose of attacking credibility may not be proved by extrinsic evidence, although they may be inquired into on cross-examination of a witness if probative of truthfulness or untruthfulness. C.R.E. 608(b). Here, the claimant was apparently attempting to attack Dr. Thiel’s credibility by showing that in other cases Dr. Thiel opined employees’ health problems were not work-related. Of course, the implication was that Dr. Thiel was regularly falsifying his opinions in other cases so as to benefit the employer, and must be doing so in this case. In our opinion, the ALJ correctly concluded the union official’s proffered testimony was “extrinsic evidence” of Dr. Thiel’s conduct and not relevant in light of the restrictions imposed by C.R.E. 608(b). Moreover, no showing was made that the union official was qualified to make a judgment concerning whether Dr. Thiel was correctly diagnosing the employees’ conditions.
III.
Finally, the claimant contends the ALJ should have granted her request for a post-hearing deposition of the DIME physician. The claimant reasons that the respondent did not disclose, pursuant to discovery requests, that it was asserting the claimant’s disability was not work related. We are not persuaded.
The ALJ has wide-discretion in the conduct of evidentiary proceedings, including the decision of whether to permit additional evidence after the apparent conclusion of the scheduled hearing. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Here, the ALJ implicitly denied the claimant’s request by transmitting the matter to us for review. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
We perceive no abuse of discretion. As noted above, it was th claimant who had the burden to prove the industrial injury caused the PTD. Further, prior to the hearing, the claimant was aware of medical reports of Dr. Thiel which attributed the claimant’s disability to medical conditions other than the industrial injury. Consequently, the claimant could not reasonably have been surprised that she would need to rebut this evidence to meet her burden of proof. Moreover, the claimant must have been aware the DIME physician had not stated any opinion concerning the existence of restrictions or their causes, but the claimant failed to depose the DIME physician before the hearing. Thus, the ALJ could reasonably conclude the claimant was not unfairly surprised by Dr. Thiel’s reports and testimony, and did not exercise due diligence to obtain the opinions of the DIME physician before the hearing. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991).
IT IS THEREFORE ORDERED that t he ALJ’s order dated December 4, 2002, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on February 5, 2004 by A.Hurtado.
Petra Montoya Chavez, c/o Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631
Kathy White, Excel Corporation, C. S. 4100, Fort Morgan, CO 80701
Margaret Johnson, Crawford Company, 2850 McClelland, #1600, Fort Collins, CO 80525
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondent)