W.C. No. 4-337-588Industrial Claim Appeals Office.
March 11, 1999.
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which determined that they failed to overcome the Division-sponsored independent medical examiner’s (IME) medical impairment rating by clear and convincing evidence. The respondents argue that the ALJ improperly discredited the testimony of their expert because the expert relied on information obtained from others. We affirm.
The claimant allegedly sustained compensable injuries to his back, right knee, and head on March 5, 1997. After reaching maximum medical improvement the claimant underwent a Division-sponsored IME. The IME physician opined the claimant has a 31 percent whole person impairment. This rating includes impairment attributable to a closed head injury, the spine, and the right knee.
The respondents challenged the IME rating and presented the testimony of the claimant’s treating physician, Dr. Macaulay. Dr. Macaulay opined that the claimant has no ratable impairment as a result of the industrial injury.
During the course of his testimony, Dr. Macaulay stated that he referred the claimant to Dr. Zinis, a physiatrist, for evaluation of the claimant’s back and knee. Dr. Macaulay testified that he “consulted” with Dr. Zinis and that Zinis supported Macaulay’s opinion that the claimant has no ratable impairment of the back or knee. (Tr. pp. 11, 12). However, the ALJ prohibited Dr. Macaulay from testifying to statements by Dr. Zinis concerning whether the claimant was “reliable” or “malingering.” (Tr. pp. 19, 20).
Dr. Macaulay also referred the claimant to Dr. Cohen, a psychologist, to assist in determining whether the claimant suffered a closed head injury. In a report dated May 21, 1997, Dr. Cohen stated that his “findings at this point would suggest a provisional injury related diagnosis of Mild Post Concussive Syndrome, and Mild Adjustment Reaction with Anxious Mood.” However, Dr. Macaulay testified that he spoke with Dr. Cohen at a later time and Dr. Cohen retracted the provisional diagnosis. (Tr. pp. 22, 39-40).
Dr. Macaulay also relied on the opinion of an ophthalmologist in rejecting the diagnosis of an industrial closed head injury. Although no report was entered into evidence, the ophthalmologist apparently advised Dr. Macaulay that the claimant was not suffering from a vision disorder characteristic of head injuries. (Tr. pp. 24-27).
The ALJ found that the respondents failed to overcome the IME physician’s impairment rating by clear and convincing evidence. With regard to Dr. Macaulay’s testimony concerning the right knee injury, the ALJ noted that Dr. Macaulay “stated there was no pathology based on his private consultation with Dr. Zinis.” The ALJ also noted that Dr. Macaulay had a “private consultation” with Dr. Cohen concerning the existence of a closed head injury, but Dr. Cohen’s written report was consistent with the existence of a closed head injury. The ALJ finally noted that there were no written reports from the ophthalmologist.
On review, the respondents contend the ALJ erred in discrediting the testimony of Dr. Macaulay. The respondents argue that the ALJ refused to consider the testimony because it was based on “hearsay” consultations with other experts. The respondents reason that C.R.E. 703 permits experts to base their testimony on “hearsay” information obtained from other experts prior to the hearing. We find no error.
As the respondents argue, C.R.E. 703 permits an expert to base his opinion on “facts or data” made known to him before the hearing. Further, the facts or data need not be admissible in evidence “if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” In view of this rule, the courts have permitted expert witnesses to express opinions based on out-of-court reports of other experts. Fenton v. Fireboard Corp., 827 P.2d 564
(Colo.App. 1991); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
However, C.R.E. 703 is not a vehicle by which the opinion of one expert may be admitted into evidence as the testimony of another expert. People v. District Court, 647 P.2d 1206 (Colo. 1982). Rather, an expert is to express his own opinion, and in doing so he may rely on the opinions of experts in other fields as background information. Gold Rush Investments, Inc. v. G.E. Johnson Construction Co., 807 P.2d 1169 (Colo.App. 1990). The ALJ has wide discretion in determining whether the requirements governing the admission of expert opinions have been satisfied Id. at 1173.
The respondents’ contention notwithstanding, this is not a case in which the ALJ refused to consider the testimony of Dr. Macaulay on the grounds that it was inadmissible expert testimony. To the contrary, the ALJ admitted the testimony of Dr. Macaulay, even though it was partially based on information which he obtained from other experts. Although the ALJ prevented Dr. Macaulay from reciting the precise out-of-court remarks of other experts, he permitted Dr. Macaulay to refer to and rely on other expert opinions in expressing his own opinion.
The ALJ’s observation that Dr. Macaulay had “private consultations” with other experts does not constitute grounds for setting the order aside. It was for the ALJ to assess the credibility of the respondents’ expert. Rockwell International v. Turnbull, supra. In so doing, the ALJ could consider whether Dr. Macaulay’s testimony was corroborated by other testimony and evidence in the case. Consequently, it was proper for the ALJ to consider that Dr. Cohen’s written report was inconsistent with his alleged oral statements to Dr. Macaulay. Further, it was proper for the ALJ to consider that the respondents failed to submit a report from the ophthalmologist which would corroborate Dr. Macaulay’s testimony.
It follows that we perceive no abuse of discretion in the ALJ’s admission or evaluation of the evidence. The ALJ struck a reasonable balance between permitting the respondents’ expert to rely on evidence obtained beyond the hearing, while prohibiting the expert from introducing external opinions as his own. Further, the ALJ acted within his fact-finding authority by concluding that respondents failed to carry their burden of proof.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 6, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 11, 1999
the following parties:
John Esparza, 1720 Julian St., Denver, CO 80204
Wilson Mechanical, 7348 S. Alton Way, Englewood, CO 80112-2328
Truck Insurance Exchange, P. O. Box 378230, Denver, CO 80237
Samuel H. Collins, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Michael P. Serruto, Esq., Orchard Place II, #106, 5975 Greenwood Plaza Blvd., Greenwood Village, CO 80111 (For Respondents)
BY: _____________