W.C. No. 4-519-141Industrial Claim Appeals Office.
January 15, 2003
FINAL ORDER
The claimant seeks review of orders of Administrative Law Judge Harr (ALJ) which denied his request to submit additional evidence after the conclusion of the hearing, and denied and dismissed the claim for workers’ compensation benefits. We affirm.
At the hearing held on February 6, 2002, the claimant testified he injured his back while lifting a tray of steaks in the course of his employment as a sous chef. The incident allegedly occurred on September 23, 2001. However, the ALJ found the claimant’s testimony was not credible because it was contradicted by the restaurant owner, and because of prior inconsistent statements made by the claimant. Specifically, the restaurant owner testified that although the claimant reported back pain, he did not attribute the pain to any particular incident. Further, the claim for compensation signed by the claimant alleged an injury on July 23, 2001, and the claimant told the examining physician that he hurt his back lifting a sack of potatoes. Thus, the ALJ denied the claim for benefits.
I.
Relying on Larson v. A.T.S.I., 859 P.2d 273 (Colo.App. 1993), the claimant argues the respondents’ counsel judicially admitted a compensable injury during his closing argument to the ALJ. We disagree with this argument.
During closing argument counsel for the respondents stated that “some type of incident” occurred on September 23 and that the claimant “sustained some symptoms in his lower back on the job and in the course and scope of his employment.” Later in the argument, counsel asserted that although the claimant experienced symptoms at work, the evidence showed the claim for benefits was “nothing more than a retaliatory claim” based on the fact the claimant was discharged from employment on October 9, 2001. (Tr. Pp. 65, 68).
It is true that a judicial admission of fact made in argument to an ALJ becomes binding on a party. Schlage Lock v. Lahr, 870 P.2d 615
(Colo.App. 1993). However, a judicial admission is a formal, unequivocal declaration made for the purpose of dispensing with the requirement to prove an element of a claim, and about which there is no real dispute Larson v. A.T.S.I., supra.
Here, we agree with the respondents that counsel’s statements in closing argument do not amount to a judicial admission that the claimant sustained a compensable injury. Sections 8-41-301(1)(b) and (c), C.R.S. 2002, require that at the time of the injury the claimant be performing services arising out of and in the course of the employment, and that the injury be proximately caused by the employment. These are distinct requirements, and the mere fact that an injury or symptoms occur during employment does not mean that the injury or symptoms were caused by the employment. For instance, if the claimant is suffering from a preexisting condition, a compensable claim does not occur unless the employment aggravated, accelerated, or combined with the preexisting condition so as to cause the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). The burden to prove the requisite causal relationship rests with the claimant. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Here, counsel’s statements during closing argument do not constitute the type of unequivocal admission which would establish a compensable injury. Rather, read in their entirety, counsel’s statements merely admit the claimant experienced back symptoms on the job, not that the employment caused an injury which produced the symptoms. Indeed, the respondents’ counsel argued the claim was filed in an effort to retaliate against the employer for the discharge, and the claimant’s testimony concerning the alleged injury was not credible.
Moreover, this case is distinguishable from Larson v. A.T.S.I., supra. In Larson, the defendants admitted liability but disputed damages. In closing argument the defendants’ attorney admitted the plaintiff sustained a cervical strain, a bruise, and “fright.” Since the defendants’ counsel admitted the plaintiff sustained physical injury, the court held a defense verdict could not be sustained and remanded for a new trial on damages. Here, the respondents never admitted that a compensable event occurred, and in fact disputed that issue at the commencement of the hearing.
Insofar as the claimant argues that his “uncontested testimony” establishes that he sustained a compensable injury, we disagree. Plausible inferences drawn from conflicting evidence support the ALJ’s decision to discredit the claimant’s testimony, and we may not interfere with that factual determination. Section 8-43-301(8), C.R.S. 2002 Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999) (we must defer to ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record).
II.
The claimant next contends the ALJ erred in denying his post-hearing motion to submit “newly discovered evidence.” In this regard, the record reflects the ALJ entered his final order on March 6, 2002. After the claimant submitted a petition to review and brief in support, the claimant filed a motion to submit newly discovered evidence on June 21, 2002. In this motion the claimant requested to submit the report of an MRI performed on June 13, 2002. The MRI report, which was attached to the motion, indicates the presence of a disc protrusion at L5-S1, and “nonspecific effusion” in the L3 L4 region “which may be reactive from spondylitic changes or possibly related to recent or recurrent trauma.”
However, on July 22, 2002, the ALJ denied the motion to admit the evidence. The ALJ ruled the MRI report was not newly discovered because it could have been procured before the February 6 hearing, and in any event could not have changed the outcome of the hearing. The claimant did not file a separate petition to review the July 22 order. However, after the matter was transmitted to us, the claimant requested that we review the propriety of this order. We then remanded the matter to establish a briefing schedule for the parties to address the procedural and substantive issues.
As a preliminary matter, the respondents argue the claimant’s failure to file a separate petition to review the July 22 order precludes consideration of the matter on appeal. However, when ruling on a petition to review, an ALJ may elect to “set the matter for further hearing.” Section 8-43-301(5), C.R.S. 2002. Rulings concerning the reception of evidence are interlocutory and not immediately reviewable under §8-43-301(2), C.R.S. 2002. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Under these circumstances, we consider the ALJ’s denial of the claimant’s motion to receive additional evidence as incident to the ALJ’s March 6 order, and reviewable in conjunction with our review of the March 6 order. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997); American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) (interlocutory order issued incident to a final order may be reviewed contemporaneously with the final order).
The claimant argues the ALJ’s denial of the motion to receive the MRI report was error because the report supports the compensability of the claim, and the respondents interfered with his ability to obtain the MRI by contesting the claim for benefits. We are not persuaded by these arguments.
As noted, § 8-43-301(5) affords the ALJ authority to receive evidence after the apparent conclusion of the proceedings. However, this authority is discretionary and we will not interfere with the ALJ’s decision unless an abuse has been shown. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Several factors may be considered in determining whether the ALJ abused his discretion in refusing to receive additional evidence. These factors include whether the proffered evidence could be outcome determinative See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000). The ALJ may also consider whether the evidence might have been obtained before the hearing by the exercise of due diligence, and the expense and inconvenience to the opposing parties if additional evidence is received. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra.
Here, we perceive no abuse of discretion in the ALJ’s ruling denying the request to submit additional evidence. First, as noted, the claimant had the burden of proof to establish a compensable claim, and the respondents were under no obligation to admit liability or to finance the claimant’s litigation costs. Thus, we reject the claimant’s assertion that he is entitled to present additional evidence because the respondents were “gaming the system.” The claimant made no explanation as to why he could afford an MRI after the hearing, but not before. Thus, the record supports the ALJ’s conclusion that the MRI could have been procured before the hearing by the exercise of due diligence and was not newly discovered evidence.
Moreover, the record supports the conclusion that the MRI would probably not have been outcome determinative if it had been admitted. The dispositive issue in the case was not the existence of back pathology, but rather the claimant’s ability to prove the pathology and related symptoms were caused by the employment. The causation issue turned primarily on the claimant’s credibility with respect to the alleged lifting incident, and the MRI offered little if any evidence which would enhance the claimant’s credibility on that issue.
IT IS THEREFORE ORDERED that the ALJ’s orders dated March 6, 2002, and July 2, 2002, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______January 15, 2003 to the following parties:
Leonard J. Garamella, P.O. Box 323, Tabernash, CO 80478
Paul’s Creekside Grill, Inc., P.O. Box 1996, Grandby, CO 80446-1996
TIG, 5205 N. O’Connor Blvd., P.O. Box 152870, Irving, TX 75039
James E. Gigax, Esq., 410 17th St., #2400, Denver, CO 80202 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: ____A. Hurtado_______________