W.C. No. 4-221-576Industrial Claim Appeals Office.
May 7, 1998
ORDER OF REMAND
The respondents seek review of orders of Administrative Law Judge Gandy (ALJ) which denied their request to present additional evidence and awarded permanent total disability benefits. We set aside the orders and remand for further proceedings.
In 1993, the claimant sustained an occupational disease affecting her upper extremities. The claimant reached maximum medical improvement on July 30, 1996, and underwent a functional capacity evaluation (FCE) on September 19, 1996. The FCE concluded that, the claimant has “virtually no occupationally viable use of her upper extremities.”
The claimant subsequently applied for permanent total disability benefits. Under the applicable law, permanent total disability exists when the claimant is “unable to earn wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 1997.
Following a hearing on May 21, 1997, the ALJ found that the claimant is unable to earn any wages. In so doing, the ALJ credited the results of the FCE, the opinions of Dr. Yocum and the testimony of vocational rehabilitation expert Joseph Blythe. Therefore, in an order dated July 10, 1997, the ALJ awarded permanent total disability benefits.
The respondents timely petitioned for review of the July order. On January 20, 1998, before their brief was filed, the respondents filed a “Motion to Extend Briefing Schedule and Motion to Reopen the Record or in the Alternative Motion for Extension of Time to File Opening Brief.” In regards to the Motion to Reopen the Record, the respondents alleged that they have newly discovered evidence which is potentially outcome determinative of the claimant’s ability to reenter the labor market. Therefore, the respondents requested that the matter be set for a further hearing which affords them the opportunity to present the newly discovered evidence.
The newly discovered evidence cited by the respondents includes a medical report which indicates that the claimant was examined by Dr. Gaudio on March 13, 1997, and that Dr. Gaudio found “no objective evidence” to corroborate the claimant’s subjective complaints. Dr. Gaudio also found no “impairment-related physical imitations or postural limitations, other than possibly the postural limitation of reaching.” Further, the Social Security Administration (SSA) issued a written decision dated April 2, 1997, which denied the claimant’s application for social security disability benefits (SSDI) on grounds that her upper extremity problems do not preclude her from working. The SSA decision expressly states that it is based upon medical records including the reports of Dr. Gaudio and Dr. Yocum.
In an order dated February 3, 1998, the ALJ denied the Motion to Reopen the Record. The ALJ ruled that SSDI benefits was not an issue endorsed for the hearing on May 21, 1997, and was not adjudicated in the July order. The respondents subsequently filed a brief in support of the petition to review the July 10 order, and reasserted their arguments concerning the existence of newly discovered evidence. No further order was entered and the matter was subsequently transmitted to us for review.
An ALJ was wide discretion to determine whether, after the apparent conclusion of the proceedings, it is appropriate to reopen the matter for the taking of additional evidence. Section 8-43-207(1)(j), C.R.S. 1997; § 8-43-301(5), C.R.S. 1997; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The legal standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ’s determination exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Where a motion to reopen the record is based upon a desire to present “newly discovered evidence,” it is proper for the ALJ to consider whether the evidence could have been discovered prior to the hearing through the exercise of reasonable diligence. Kennedy v. Bailey, 169 Col. 43, 453 P.2d 808 (1969). Reasonable diligence is established where the proponent of the motion for a new trial demonstrates that the new evidence was not only unknown prior to the first hearing but could not have been timely discovered through reasonable efforts. Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465 (1936). The ALJ may also consider whether the proffered evidence is likely to be outcome determinative Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765
(Colo.App. 1987).
The respondents’ brief contains assertions which, if proven, arguably establish that they now possess evidence which they did not have at the time of the hearing, and could not have obtained, and which might be outcome determinative with respect to the claimant’s ability to earn wages in the same or other employment. However, the ALJ determined that the proffered evidence is not relevant because the respondents’ entitlement to an SSDI offset was not endorsed for hearing and was not resolved by the July 1997 order. We conclude that the ALJ abused his discretion in denying the respondents’ Motion to Reopen the Record on these grounds. Section 8-43-301(8), C.R.S. 1997.
Contrary to the ALJ’s determination, evidence that the SSA has determined that the claimant is not permanently and totally disabled may be relevant, although not dispositive, of whether a claimant is entitled to workers’ compensation benefits for permanent total disability. Similarly, medical evidence concerning the claimant’s residual physical abilities, regardless of whether it is the result of an application for SSDI, is pertinent to whether the claimant’s physical condition precludes her from earning any wages. This is true even if the respondents have not asserted the right to an SSDI offset. In fact, under circumstances such as presented here, where the SSA has denied the claimant’s application for SSDI, the ALJ’s reasoning would preclude the respondents from ever introducing the claimant’s SSDI records in a workers’ compensation claim for permanent total disability.
As a result of the ALJ’s erroneous determination, he did not make any specific findings of fact concerning the respondents’ assertions. Therefore, we must remand the matter to the ALJ for such proceedings as are necessary to resolve the respondents’ Motion to Reopen the Record.
In addition, the respondents argue that the claimant had the claimant was in possession of the proffered evidence prior to the hearing on May 21, 1997, and willfully failed to disclose it in violation of the Rules of Procedure. Therefore, the respondents request that the claimant be ordered to comply fully with permitted discovery before holding a further hearing. In the alternative, the respondents request an order dismissing the claim for permanent total disability benefits.
Section 8-43-207(1)(e), C.R.S. 1997, permits an ALJ to impose sanctions provided by the Colorado Rules of Civil Procedure for the “willful” failure to comply with permitted discovery. See Kwik Way Stores, Inc., v. Caldwell, 745 P.2d 672 (Colo. 1987) (willfulness requires deliberate or intentional misconduct) Wubben v. Northern Colorado Restaurant Corp., W.C. No. 4-262-726
(March 26, 1997); Hernandez v. Longmont Dairy Farms, W.C. No. 4-167-102, (December 11, 1995). Based upon the ALJ’s erroneous determination that the proffered evidence was not relevant, the ALJ did not make any specific findings concerning the respondents’ contention that the claimant willfully withheld the evidence. Therefore, on remand the ALJ must also resolve the respondents’ additional arguments concerning the disputed evidence. Within his sole discretion, the ALJ may take additional evidence to resolve the disputed issues.
In view of our disposition, it is premature to consider the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s orders dated July 10, 1997 and February 3, 1998, are set aside and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed May 7, 1998 to the following parties:
Catalina Enriquez, 816 2nd Street Court, Dacono, CO 80514
Autotron Products, Inc., 1275 Sherman Dr., Longmont, CO 80601-6133
Shelly Wahle, Zurich American Insurance Co., P.O. Box 7936, Shawnee Mission, KS 66207-0936
Marsha A. Kitch, Esq. Pattie J. Ragland, Esq., 1675 Broadway, #2100, Denver, CO 80202 (For the Respondents)
Esteban A. Salazar, Esq., 1439 Fifth St., Greeley, CO 80631 (For the Claimant)
BY: _______________________