W.C. No. 4-357-359Industrial Claim Appeals Office.
March 31, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Rumler which denied and dismissed the claim for workers’ compensation benefits. The claimant contends the ALJ erroneously determined that she failed to prove she suffered a compensable injury in July 1997. We disagree, and therefore, affirm.
In 1993, the claimant developed symptoms in her left arm which were diagnosed as a myofascial shoulder injury and treated by Dr. Frank. Dr. Frank testified that the injury resolved by September 22, 1993. In March 1995 the claimant reported symptoms in her left hand and arm which appeared to be left cervical radiculopathy. However, x-rays taken in 1995 revealed no abnormalities in the claimant’s cervical spine. Dr. Frank also opined that the claimant’s condition resolved by December 20, 1995. In December 1995, the claimant was also treated for right arm pain. The claimant reported further left upper extremity problems in December 1996. She was treated by Dr. Frank for bicep tendinitis, epicondylitis and DeQuervain’s syndrome. On January 7, 1997, Dr. Frank reported that the claimant’s symptoms had resolved.
The claimant subsequently filed this workers’ compensation claim and alleged a work-related cervical injury in July 1997. The claimant testified that she suffered a sudden onset of pain symptoms which she initially mistook as a heart attack. An MRI exam in September 1997 revealed a herniated cervical disc. The claimant alleged that the herniated disc was caused or aggravated by her employment. The claimant also argued that the herniated disc existed in 1993 or 1995 and was misdiagnosed.
Dr. Samuelson opined that the herniated cervical disc was caused by the claimant’s employment. Dr. Frank disagreed and opined that if the disc herniation had existed in 1993 or 1995, the claimant would not have responded so well to treatment. (See
Tr. p. 78). Dr. Frank also stated that the claimant’s 1997 symptoms were different than her 1996 symptoms. (Tr. p. 84).
Following a hearing on January 4, 1999, the ALJ entered a Summary Order dated January 7, 1999, which denied the claim. On conflicting medical evidence the ALJ rejected the claimant’s theory that she suffered a work-related herniated disc in 1993 or 1995 which was misdiagnosed until September 1997. The ALJ found that the claimant’s symptoms would have been more severe if the herniated disc had existed prior to July 1997.
The claimant’s attorney timely requested the preparation of specific findings of fact. He also objected to the ALJ’s directive that the specific findings be prepared by opposing counsel. On February 17, 1999, the ALJ entered specific findings of fact and conclusions of law in support of the order.
I.
On review the claimant first contends the ALJ erred in signing the specific findings of fact prepared by the respondent’s counsel. We disagree.
The claimant admits that there is no statutory language which precludes the preparation of proposed findings of fact by opposing counsel. However, the claimant contends the practice should be prohibited because opposing counsel may be inclined to distort the facts in favor of his client.
The claimant’s arguments notwithstanding, that is not the state of the law and we lack authority to create a new rule of law. See § 8-43-301(8), C.R.S. 1999; Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000) (court cannot read nonexistent provisions into statute). The courts have repeatedly declined to reverse orders merely because they were originally drafted by one of the parties. I Ficor, Inc. v. McHugh, 639 P.2d 385 (Colo. 1982), and Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232
(1966), the courts held that if the ALJ’s findings are otherwise sufficient, they are not weakened or discredited because they were originally drafted by one of the parties. In Colorado-Ute Electric Assn. v. Scarlett, (Colo.App. No. 88CA1055, September 14, 1989) (not selected for publication) the Court stated, when “a fact finder signs findings that are submitted by a party, the responsibility for their accuracy becomes his. [citation omitted].”
We must scrutinize such findings more critically. However, it is presumed that the ALJ examined the proposed findings and agreed that they correctly stated the facts as she found them to be; otherwise, she would not have adopted them as her own. See Uptime Corp. v. Colorado Research Corp., supra. The claimant has not offered a basis to disregard that presumption here.
The ALJ’s findings adequately indicate the basis for her decision and are supported by substantial evidence in the record. Therefore, we will not set them aside merely because they were originally prepared by respondent’s attorney of record. See Ficor, Inc. v. McHugh, supra. Furthermore, the ALJ did not adopt the proposed order verbatim. Rather, she edited both the findings and the conclusions of law to reflect additional determinations. Therefore, the order presumably reflects the independent determinations of the ALJ. See Uptime Corp. v. Colorado Research Corp., supra.
We also note that the ALJ’s Summary Order contains factual determinations which clearly delineate the basis for the ALJ’s order. The ALJ’s specific findings of fact and conclusions of law are a fair and logical extension of the Summary Order. See Labiak v. Bader Burke Company, W.C. No. 4-134-999 (October 14, 1999). Consequently, we reject the claimant’s contention that the ALJ erred in adopting the findings of fact drafted by the respondents’ counsel.
II.
Next, the claimant contends the ALJ erroneously credited Dr. Frank’s testimony. The claimant contends that Dr. Frank was equivocal on the cause of the claimant’s herniated disc. The claimant also asserts that it was “misleading” for Dr. Frank to say he would be committing malpractice to say that the condition shown on the 1995 cervical x-rays was the same as the condition reflected on the 1998 MRI scan.
The ALJ’s credibility determinations from conflicting expert testimony are binding unless the testimony of a particular expert, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We conclude that Dr. Frank’s testimony is not overwhelmingly rebutted by hard, certain evidence to the contrary.
There was a direct conflict between Dr. Frank and Dr. Samuelson concerning the cause of the claimant’s cervical disc herniation. The ALJ determined that Dr. Frank had a superior knowledge of the claimant’s job duties, and thus, was in a better position than Dr. Samuelson to assess the relationship between the claimant’s job and her medical condition. Consequently, the ALJ resolved the conflict in favor of Dr. Frank. We may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the various medical evidence. Therefore, we cannot say the ALJ erred in refusing to credit Dr. Samuelson’s testimony.
The claimant’s further arguments to challenge to Dr. Frank’s testimony have been considered and are not persuasive.
III.
The claimant also contends that her due process rights were violated by the ALJ’s “incessant interruptions, questions and comments.” The claimant contends that the ALJ’s conduct prevented her attorney from the effective cross-examination of Dr. Frank.
§ 8-43-207(1)(h), C.R.S. 1999 authorizes the ALJ to control the course of the hearing and the conduct of persons in the hearing room. The claimant’s arguments notwithstanding, the ALJ is also entitled to question the witnesses. See CRE 614(b).
Here, the record reveals that the ALJ questioned Dr. Frank to clarify his testimony and prevent her confusion. (Tr. p. 91). However, the ALJ did not preclude claimant’s counsel from asking whatever additional relevant questions he desired. See also CRE 611. (Tr. pp. 38, 64). Moreover, the record does not contain any contemporaneous objection and the claimant does not suggest how the outcome would have been any different in the absence of the ALJ’s questioning. (See Tr. pp. 102, 111). Therefore, we are not persuaded the claimant was denied due process of law. See Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 17, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Robert M. Socolofsky
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. 1999. 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 March 31, 2000
to the following parties:
Emma Edwards, 4835 E. Thrill Pl., Denver, CO 80207
Ruth Rigsby, Samsonite Corporation, 11200 E. 45th Ave., Denver, CO 80239
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
David L. Lavinder, Esq., P. O. Box 609, Franktown, CO 80116 (For Respondent)
BY: A. Pendroy