W.C. No. 4-343-800.Industrial Claim Appeals Office.
June 4, 2004.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied benefits for permanent and total disability (PTD). We set aside the order and remand the matter for additional findings.
In April 1997, the claimant sustained compensable injuries to the lumbar spine, cervical spine, and right hip. The ALJ found that as a result of the industrial injuries the claimant suffers headaches and pain in his neck, lower back and buttocks.
It is undisputed the claimant is physically unable to return to work for the respondent and the claimant has not performed any employment since October 1997. The ALJ found the loss of employment has contributed to the claimant’s symptoms of depression.
At the hearing on PTD the claimant’s vocational expert opined the claimant is unable to retain competitive employment due to headaches and concluded the claimant does not possess transferrable work skills. The respondent offered expert testimony from vocational consultant Cindy Longfellow (Longfellow). Longfellow testified that she obtained a Master’s Degree in Vocational Counseling from the University of Minnesota in 1983. She also stated that she is a certified rehabilitation consultant, as a result of her successful completion of an examination which tested her knowledge of transferrable skills analysis, vocational testing, and interviewing, Further, Longfellow stated she is a member of the National Association of Rehabilitation Providers (NARPS). (Tr. pp. 188-189).
The ALJ found Longfellow opined the claimant is capable of earning wages in her local community in the occupations of telemarketer, customer service worker, motel front desk worker, check casher, quality control technician, electronic component assembler, and mortgage loan interviewer/processor. (Finding of Fact 10). Implicitly crediting Longfellow’s testimony the ALJ found the claimant is not PTD because the claimant:
“is able to work in a number of positions which are available in his commutable job market, including telemarketing, hotel desk clerk, customer service work, and quality control technician, even with the intervening heart condition.”
Therefore, the ALJ denied the request for PTD benefits.
The claimant timely appealed the ALJ’s order. The claimant also moved to reopen the record to present newly discovered evidence that Longfellow misrepresented her credentials at the hearing. Specifically, the claimant alleged Longfellow does not possess a Master’s Degree in vocational rehabilitation, is not a certified rehabilitation consultant and is not a member of NARPS.
In a summary order, dated April 1, 2002, the ALJ refused to reopen the record and found that the allegations, if true, were not “outcome determinative in this case.” However, the ALJ allowed the claimant to depose Longfellow and included the deposition in the appellate record.
On review, the claimant contends, inter alia, that he was denied a fair hearing by the ALJ’s reliance on Longfellow’s testimony as an expert witness. We conclude the ALJ’s order is insufficient to permit appellate review of the claimant’s contention and, therefore, remand the matter for additional findings. Section 8-43-301 (8), C.R.S. 2003.
Due process guarantees a meaningful opportunity to present evidence in support of a disputed factual proposition and as well as the opportunity to challenge expert testimony to the contrary. See Whiteside v. Smith, 67 P.3d 1240, 1248 (Colo. 2003). Section 8-43-301 (5), C.R.S. 2003 affords an ALJ jurisdiction to reopen a hearing, after the apparent conclusion of the proceedings, to receive additional evidence pertinent to determining the compensability of the claim. See Gilbert v. Rider Woulf, P.C., W.C. 4-243-377 (July 13, 1998), aff’d. Gilbert v. Rider and Woulf, P.C. (Colo.App. No. 98CA1393, April 29, 1999) (not selected for publication). Whether the evidence has the potential to be outcome determinative is just one factor for the ALJ to consider in determining whether to reopen proceedings to receive newly discovered evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000). The ALJ may also consider whether the “newly discovered evidence” could have been obtained and presented at the hearing through the exercise of due diligence. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Gilbert v. Rider Woulf, P.C., supra. Finally, the ALJ may consider the expense and inconvenience incurred by the opposing party if the proceedings are reopened to receive additional evidence with a view towards protecting the moving party’s due process rights to present evidence in support of the claim. IMPC Transportation Co. v. Industrial Claim Appeals Office, supra.
We may not interfere with the ALJ’s refusal to reopen the proceedings unless an abuse is shown. Dee Enterprises v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2040, July 31, 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). However, to permit meaningful review of an ALJ’s order denying the motion to reopen the record, the ALJ must make findings and conclusions which are sufficient to indicate the basis of her decision. Section 8-43-301 (8), C.R.S. 2003. For this reason, we have previously held that an ALJ’s discretionary authority to determine the course of the proceedings does not relieve her of the obligation to articulate the basis of an order. See Vallot v. Krische Construction, W.C. No. 4-246-341
(September 11, 1997) ; Archuleta v. Gold Star Sausage Company,
W.C. No. 4-246-350 (September 3, 1997) Mascarenas v. Brickwall Fire Protection,
W.C. No. 4-019-793 (September 9, 1994); Libenson v. Cook Lee, P.C.,
W.C. No. 4-190-782 (August 18, 1994).
Here, the ALJ implicitly relied on Longfellow’s testimony as an expert witness in vocational rehabilitation and counseling. Under these circumstances, we are unable to ascertain the basis for the ALJ’s subsequent determination that evidence offered to challenge Longfellow’s credibility which may refute Longfellow’s testimony concerning the professional credentials she alleged to possess for purposes of being qualified as an expert in vocational rehabilitation and counseling was not “outcome determinative in this case.” Under these circumstances, it is appropriate to remand the matter to the ALJ for entry of additional findings of fact which afford a basis to determine whether the claimant was denied a fair hearing by the ALJ’s reliance on the opinions of Longfellow.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 26, 2002, is set aside and the matter is remanded to the ALJ for the entry of additional findings of fact consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Kathy E. Dean
_________________________ Robert M. Socolofsky
Alejandro Davila, Jr., Pueblo, CO, Carolyn Bjur, Oregon Steel Mills, Inc., Portland, OR, Emily S. Finn, Sedgwick CMS, Inc., CO, Richard L. Susman, Esq. and Steven U. Mullens, Esq., Pueblo, CO, (For Claimant).
Katherine Markheim Lee, Esq. and Jonathan A. Decker, Esq., Denver, CO, (For Respondent).