W.C. No. 3-892-130.Industrial Claim Appeals Office.
December 28, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 12, 2007, that found the claimant was no longer permanently and totally disabled (PTD) and allowed the insurer to terminate payment of PTD benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a compensable injury to his left knee on January 12, 1988. The claimant reached maximum medical improvement on March 18, 1991. Dr. Norrgran examined the claimant in 1991 and stated that the claimant could hardly walk and was unable to work even a light duty job. Anthony Manuele, Ed.D., assessed the claimant’s employability in 1991 and concluded that the claimant had lost all access to the labor market because he could only tolerate three hours of sitting, standing and walking, and was unable to be gainfully employed in any kind of work. The matter was set for hearing in 1991 but the insurer and the Subsequent Injury Fund agreed that the claimant was permanently and totally disabled. The insurer began payment of permanent total disability benefits. Video surveillance was subsequently taken of the claimant in 2005 and the resulting video was shown to Dr. Roth. Dr. Roth stated that in the video the claimant could kneel, squat, stoop, and bear weight on the left leg, but that the claimant was unable to do these things during his previous examination of the claimant. Dr. Roth therefore opined that the video indicated functional improvement from 1991 and that the claimant could perform physical labor in the medium duty work category. David Zierk, Psy.D., performed a vocational evaluation and employability assessment of the claimant and opined that there
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were jobs available to the claimant based on Dr. Roth’s restrictions. He further stated that there had been a significant improvement in the claimant’s occupational functioning from 1991 to the time of the hearing. Generally crediting those opinions, the ALJ found that the claimant’s condition had improved and that he was capable of employment. The ALJ concluded that the claimant was no longer permanently and totally disabled and authorized the insurer to terminate payment of permanent total disability benefits.
I.
On appeal the claimant first contends that the claim had previously been settled and was not subject to reopening under § 8-43-303, C.R.S. 2007. However, the ALJ found that the claimant failed to show that there was any settlement of the claim that was written and was approved by an ALJ or the Director of the Division of Workers’ Compensation (Director) as required by § 8-43-204, C.R.S. 2007.
Section 8-43-204 provides that a settlement shall be signed by a representative of the employer or insurer and signed and sworn to by the injured employee, must be approved in writing by an administrative law judge or the Director prior to the finalization of the settlement. Our courts have consistently held that failure to adhere to these statutory requirements prevents the enforcement of an alleged settlement. Administrative supervision of settlements, which is mandated by the statute, helps to ensure that settlements are fair, clear, understood by the parties, and in accordance with public policy. See Cook v. McLister, 820 P.2d 1167 (Colo.App. 1991); City Market v. Industrial Claim Appeals Office, 800 P.2d 1335 (Colo.App. 1990); Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); Covert v. Navajo Express, Inc., W.C. No. 3-908-058 (December 18, 1995); Sandoval v. Parkview Medical Center, W. C. No. 4-501-083 (May 05, 2004).
The claimant has not pointed to, nor does the record reveal, any signed written settlement agreement between the parties and approved by an ALJ or the Director. Under these circumstances we must reject the claimant’s assertion that there has been a “settlement” of the claim within the meaning of § 8-43-204. Therefore, we perceive no error in the ALJ’s determination that the issue of reopening should be considered under § 8-43-303.
II.
The claimant next contends that he was denied the right to have a physician present at the time of an independent medical examination arranged for by the insurer. Section 8-43-502, C.R.S. 2007, requires that the claimant upon the request of the employer shall submit to an independent medical examination. Section 8-43-502 also provides that the claimant shall be entitled to have a physician present at any such examination, provided and paid for by the employee.
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The claimant argues that Dr. Roth’s report should not be admitted into evidence because he was not given the right to have a physician present at the time of Dr. Roth’s examination. Tr.(10/20/06) at 11. However, the claimant stated that he had not brought a doctor to the scheduled examination because, although he was acting as his own attorney at that time, he had not known until shortly before the examination that he had the right to have a doctor of his choosing accompany him. Tr.(10/20/06) at 12-13.
The claimant is presumed to know applicable statutes and is required to act accordingly. Paul v. Industrial Commission, 632 P.2d 638
(Colo.App. 1981). Therefore, the claimant’s ignorance of the applicable procedural rules does not afford grounds for appellate relief. See Manka v. Martin, 200 Colo. 160, 614 P.2d 875 (1980) (pro se party is held to the same requirements as an attorney); Swanson v. Richard P. Henry D/B/A/ Steamboat Stoveworks, W.C. Nos. 4-589-465, 4-646-823, 4-646-825, 4-646-827, 4-646-828 and 4-646-829 (September 13, 2006). The ALJ overruled the claimant’s objection to the admission of Dr. Roth’s report and we perceive no basis on which to disturb that determination.
III.
The claimant argues that much of the respondents’ evidence should have been excluded because it came from “illegal” discovery. The claimant contends respondents were not entitled to discovery because of his status as a pro se litigant. Section § 8-43-207(1)(e) provides that upon written motion and for good cause shown, parties may be permitted to engage in discovery except that permission need not be sought if each party is represented by an attorney and the parties agree to engage in discovery. Prehearing Administrative Law Judge (PALJ) Eley entered an order dated June 26, 2006, in response to the respondents’ Motion to Compel production of documents. PALJ Eley citing Thomson v. Pioneers Hospital, W.C. 4-536-930(September 17, 2003) stated that the Workers’ Compensation Act forbids a party from seeking discovery from an unrepresented party without an order from an administrative law judge. PALJ Eley therefore denied the motion to compel. PALJ Eley’s order arguably has some relevance to the issue of penalties; however, we note that ALJ Coughlin in an order dated June 30 2006, ruled that all penalties raised by the claimant in his response to the application for hearing were stricken. Further ALJ Broniak in an order dated September 13, 2006, denied claimant’s motion to reconsider the respondents’ motion to strike penalty claims. We do not read PALJ Eley’s order as a general order preventing the respondents from offering into evidence any material gathered during discovery. Rather that order merely resolved a particular dispute regarding the respondents’ efforts to obtain particular materials. If the claimant wished to exclude evidence based on the respondents’ “violation” of discovery principles he was required to seek orders excluding that evidence either from the ALJ or from a prehearing ALJ prior to the hearing.
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The claimant also contends that allowing the surveillance tape into evidence violated his right not to be compelled to be a witness against himself. The claimant cites no authority for this proposition and we are aware of none. See Andrade v. Industrial Claim Appeals Office
121 P.3d 328(Colo.App. 2005) (reliance on division-sponsored independent medical examination (DIME) physician’s change of opinion after viewing surveillance video did not violate claimant’s due process rights).
We also note that the claimant made no objection when the respondents offered the surveillance tape into evidence. Tr.(10/20/06) at 46, 59. Under the Colorado Rules of Evidence, before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1), see also § 8-43-210, C.R.S. 2007 (CRE apply in workers’ compensation proceedings); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Under these circumstances, the claimant waived any objection he may have had to the ALJ’s consideration of the surveillance tape. We perceive no error in the ALJ’s order based upon the claimant’s arguments regarding discovery.
IV.
The claimant argues that the investigator who filmed his activities was not at the hearing. However, the claimant identified himself as the individual in the tape and we perceive no difficulty with an adequate foundation for the admission of the tape being laid. Copeland v. Self-Insured W.C. 3-907-084, 3-896-046, 3-949-827, 3-954-423 (April 15, 1991).
The absence of the investigator might affect the weight but did not affect the admissibility of the evidence. See Kortz v. Guardian Life Insurance Company of America, 144 F.2d 676 (10th Cir. 1944) (a photograph is admissible when it is shown that it is a correct likeness of the person it purports to represent and that fact may be shown by any competent witness); see also People v. Avery, 736 P.2d 1233 (Colo.App. 1986). Moreover, as noted above the claimant did not object to the admission of the surveillance tape.
V.
The claimant contends the ALJ erred in finding that he is no longer permanently and totally disabled. The claimant argues that he has “good and bad days” and that the ALJ erred in accepting the surveillance evidence as representative of his condition. He argues that the surveillance tape reveals only a short period of time contrasted with other evidence, including his own testimony, which showed his condition over a much longer period of time.
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Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
The claimant’s assertion notwithstanding, the surveillance tape, the reports and testimony of Dr. Roth and Dr. Zierk fully support the ALJ’s findings and the conclusion. Exhibit N; Exhibit A at 48, Tr.(10/20/06) at 91-93; Exhibit J at 114-115, Tr.(5/25/07) at 60 86. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). We have considered the claimant’s remaining arguments and they do not persuade us. We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 12, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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DENNIS GARRISON, QUEEN STREET, WESTMINSTER, CO, (Claimant).
AETNA CASUALTY SURETY, Attn: MICHELLE JENSEN, MINNEAPOLIS, MN, (Insurer).
BLACKMAN LEVINE, L.L.C., Attn: LAWRENCE D BLACKMAN, ESQ., E. FLORIDA AVENUE, SUITE, DENVER, CO, (For Respondents).
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