W.C. No. 4-532-955.Industrial Claim Appeals Office.
August 16, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated April 14, 2010, that denied and dismissed the claim for medical and temporary total disability benefits related to right ankle and right shoulder conditions alleged to have been injured in a September 14, 1998 industrial accident. We affirm.
We mention the following unusual procedural history for purposes of clarification. There is a claim regarding an admitted July 7, 1998 injury that is identified as W.C. No. 4-407-574 (hereafter referred to as July 7, 1998 injury). There is another claim that relates to a claimed September 14, 1998 injury which originally was not assigned a workers’ compensation number. However, an order was entered on December 19, 2000 that consolidated the claims and assigned an injury date of September 14, 1998. This claim was identified at W.C. No. 4-532-955. Exhibits P, Q. We will refer to this claim as the September 14, 1998 injury.
The claimant testified that on September 14, 1998 he injured his back, shoulder, leg, knee and ankle. The claimant testified that he was refilling oxygen tanks at a trailer home, a porch gave way and his right leg dropped suddenly. The ALJ found the claimant’s testimony was inconsistent, contradictory, and therefore not credible. The ALJ determined that the credible and persuasive evidence established that the claimant’s right ankle and right shoulder conditions were not related to the September 14, 1998 alleged work accident. The ALJ found that the evidence presented through the medical reports of Drs. Kawasaki, Goldman and Shoemaker did not support the claim. The ALJ denied the claim for medical and temporary total disability benefits related to right ankle
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and right shoulder conditions alleged to have been injured in a September 14, 1998 industrial accident.
The claimant contends the ALJ erred in denying benefits for injuries to his right shoulder and right ankle alleged to have occurred in the claimed September 14, 1998 accident. The claimant contends that he is a victim of poor record keeping by treating physicians and a failure to properly file a claim and obtain a W.C. number for the September 14, 1998 industrial accident.
To prove entitlement medical and temporary total disability benefits alleged to have been caused by injuries to his right ankle and right shoulder in a September 14, 1998 industrial accident, the claimant had the burden to prove by a preponderance of evidence that his condition arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ 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).
I.
The claimant argues that the ALJ failed to acknowledge an earlier ruling made on January 11, 2002 by ALJ Friend. In the record there is a transcript of a hearing held before ALJ Friend on January 11, 2002. The hearing was vacated because there was confusion about whether the hearing should go forward because the claimant had identified the July 7, 1998 accident as the one for hearing rather than the claim for the alleged September 14, 1998 accident. The ALJ determined that they could only proceed on the July 7, 1998 accident. The parties did not wish to go forward on the July 7, 1998 accident. It is true that counsel for the respondents volunteered, at one point in the hearing, to get a W.C. number generated for the September 14, 1998 accident. Tr. (1/11/2002) at 18.
The claimant contends that ALJ Friend found that there was no ankle injury that occurred on July 7, 1998. However, the transcript reveals only a general discussion between the parties and ALJ Friend of what was to be heard at the hearing in question. Tr. (1/11/2002) at 1-4. ALJ Friend made no ruling other than to vacate the hearing. Tr. (1/11/2002) at 19-21. Therefore, we do not agree with the claimant that the ALJ here
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failed to acknowledge any relevant ruling made at the January 11, 2002 hearing by ALJ Friend.
II.
The claimant next argues that the ALJ erred in refusing to admit as an exhibit a transcript of his deposition taken in a companion civil case in order to show consistence of testimony over time. As we understand the claimant’s argument he contends that this was not harmless error because the ALJ concluded that the claimant’s testimony was not credible at least in part because it was inconsistent and contradictory.
We initially note that the ALJ has broad discretion in the conduct of evidentiary proceedings. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). We therefore review the ALJ’s ruling in this instance under the abuse of discretion standard. See Rennaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447
(Colo. App. 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard). An abuse of discretion does not occur unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. App. 1993).
Section 8-43-210, C.R.S. contains the basic evidentiary provisions applicable to workers’ compensation claims in Colorado. It states, in pertinent part, that the Colorado rules of evidence and requirements of proof for civil nonjury cases in the district courts shall apply in all hearings. State, Dept. of Labor and Employment v. Esser 30 P.3d 189
(Colo. 2001).
Specifically the claimant contends the ALJ erred in excluding claimant’s Exhibit 17 concerning testimony he gave during his deposition in a civil action against the owner of the trailer home where he contends he fell through the porch. Tr. at 42-46. We note that Exhibit 17 is also marked as Exhibit 18 at the deposition of Dr. Goldman taken on August 27, 2009 after the June 18, 2009 hearing. Goldman Depo. at 29; Tr. (2/8/2010) at 55. Therefore we will refer to the exhibit in question as Exhibit 17/18.
The record reveals a great deal of confusion regarding Exhibit 17/18. Our review of the transcript reveals that the claimant at the time of the June hearing offered Exhibit 17/18 and the respondents made no objection. The ALJ then admitted Exhibit 17/18. Tr. (6/18/2009) at 43-44.
We do note that the attorney for the claimant, after the admission of Exhibit 17/18, then requested the claimant read his responses to questions asked during his deposition. At this point the respondents objected on the grounds of relevancy. Tr. (6/18/2009) at 45. The claimant argued that it was entirely relevant and was something that should have
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been provided to medical providers to understand the mechanics of the injury. This respondents’ objection was sustained. Tr. (6/18/2009) at 46.
The issue of Exhibit 17/18 came up again in the deposition of Dr. Goldman. Goldman Depo. At 29. Counsel for the claimant asked that the transcript be admitted and counsel for the respondents stated that he thought it had already been admitted. Goldman Depo. at 30. There was some further discussion between the attorneys and then the respondents’ attorney objected because it was repetitive of what had already been put into the record. Tr. at 32. At that point there appears to be no further questioning of Dr. Goldman regarding Exhibit 17/18.
The issue of Exhibit 17/18 came up again at the second day of the hearing held on February 8, 2010. The ALJ noted that she had been informed that Exhibit 17/18 had been excluded at the hearing held on June 18, 2009. Tr. (2/8/2010) at 14.
Although not articulated, it appears that the claimant’s argument concerning Exhibit 17/18 may be along the lines of CRE 801(d)(1)(B) because the transcript of his deposition in the civil action tends to rebut the respondents’ implied assertion that he fabricated testimony concerning the alleged September 14, 1998 accident. CRE 801(d)(1)(B) provides that a statement is not hearsay where a declarant testifies at the hearing, is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.
In summary because the claimant’s argument is predicated on the ALJ’s error in excluding Exhibit 17/18, and because it was not excluded, we perceive no error. As for the ALJ’s ruling when the claimant attempted to read a portion of his testimony into the record from the admitted exhibit, we note that the ALJ merely sustained an objection to such procedure. Here the entire transcript was in evidence. Therefore preventing the claimant from reading into the record portions of a document already in evidence is consistent with CRE 403 which allows exclusion of relevant evidence on the ground of needless presentation of cumulative evidence.
III.
The claimant next contends that the ALJ abused her discretion in ruling that the claimant’s testimony was less credible and persuasive then the testimony of Dr. Goldman’s nurse. We first note that the ALJ’s credibility determinations are binding except in extreme circumstances Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000). We are not persuaded to interfere with the ALJ’s order.
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The ALJ found that Dr. Goldman’s nurse credibly testified that the claimant did not provide a history of a motor vehicle accident nor did he return to Dr. Goldman’s office after he initially left. The claimant argues that the nurse, on cross examination, agreed that it was possible that the claimant came back to the office. Tr. (2/8/2010) at 42-43. However, we note that the nurse stated that while it was possible that the claimant came back it was not probable. Tr. (2/8/2010) at 42-43. We further note that this is consistent with her testimony on direct examination where she stated that she had no recollection of the claimant leaving the office after the appointment and returning with additional information. Tr. (2/8/2010) at 41. In our view there is ample evidence supporting the ALJ’s credibility determination, and this is certainly not the type of extreme circumstances contemplated by the court in Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000).
IV.
The claimant next contends that the ALJ erred in relying on the opinions of Dr. Goldman in concluding that the claimant’s ankle and right shoulder conditions were not related to the September 14, 1998 incident. The claimant points to a portion of Dr. Goldman’s testimony where the doctor conceded, having been shown additional documents, that the claimant had reported problems with his ankle right knee and shoulder in 1998. Exhibits 1 at 15, 17; Goldman Depo. at 13-15. However, Dr. Goldman also testified that the additional documents shown him did not change any of his opinions with the exception of conceding that perhaps there was an ankle sprain in 1998, but that it had resolved rather quickly. Goldman Depo. at 37-38.
The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Even if we were to assume that Dr. Goldman’s testimony was contradictory, which we do not, to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). We perceive no reason to interfere with the ALJ’s determination.
V.
The claimant next contends that the ALJ erred in admitting hearsay in the form of a May 19, 2008 report from Dr. Goldman. Exhibit CC. The claimant contends that Dr. Goldman testified that his wife dictated pages 1 through 8 of that report. Goldman Depo. at 9-10. The claimant objected on the ground of “hearsay” to pages 1 through 8 of the report.
As we understand the claimant’s argument he contends the ALJ erred in determining that the claimant was not credible because his history of the accident was
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inconsistent and contradictory and in doing so the ALJ relied in part on the opinions of Dr. Goldman. Therefore the admission of pages 1 through 8 of Exhibit CC, which deal with pre-existing accident, injuries and the history including review of medical records, of the claimed injury was not harmless error.
In our opinion it is important to note that Exhibit CC was admitted without objection at the first hearing held on the matter. Tr. (/18/2009) at 256. With the exception of making an objection at the deposition of Dr. Goldman we are unaware of any attempt of the claimant to remove the exhibit from the record. We do not see that a ruling was made on the claimant’s objection made to portions of Exhibit CC at the time of Dr. Goldman’s deposition. However, we are not persuaded that a remand on this issue is necessary.
Here, the essential issue is whether the ALJ could rely on the opinions of Dr. Goldman in denying the claim. We note that Dr. Goldman clarified that the initial history was taken by his wife/nurse and then he goes over it word for word with the patient and fills in any blanks he needs to. Goldman Depo. at 11. As such the taking of initial information by Dr. Goldman’s nurse/wife only goes to the weight to be given, not its admissibility. Because the background information was confirmed by Dr. Goldman we perceive no reason to interfere with the ALJ’s order.
We further note that the objection made by the claimant to the pages of Exhibit CC was on the basis that they were hearsay. Under CRE 801 (d)(2)a statement is not hearsay if the statement if offered against a party and is the party’s own statement. Here the information supplied by the claimant was his own statement and offered against him, and therefore was not hearsay. The rest of the information was a summary of information taken from medical reports. This information taken by Dr. Goldman’s wife/nurse appears to be a proper basis for the opinions by Dr. Goldman under CRE 703. Therefore, we are not persuaded to interfere with the ALJ’s order. Finally, we have considered the claimant’s other contentions, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 14, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
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RICHARD MUHLE, 2902 COLGATE DRIVE, LONGMONT, CO, (Claimant).
APRIA HEALTHCARE, Attn: DAVID JACKSON, LAKE FOREST, CA, (Employer).
AMERICAN HOME ASSURANCE COMPANY, Attn: KELLY RODOUTEY, C/O: CHARTIS INSURANCE, INC. (CLAYTON, MO OFFICE), SHAWNEE MISSION, KS, (Insurer).
SAMSON, PIPIS MARSH, LLC, Attn: RICHARD E. SAMSON, ESQ., LONGMONT, CO, (For Claimant).
SENTER, GOLDFARB RICE, LLC, Attn: WILLIAM M. STERCK, ESQ./JOSEPH H FRASER, III, ESQ., DENVER, CO, (For Respondents).
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