W.C. No. 4-570-122.Industrial Claim Appeals Office.
February 14, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant failed to prove a compensable back injury. We set aside the order and remand for additional findings.
On February 15, 2003, the claimant fell on the ice and suffered an admitted right hand injury. In mid-March the claimant noticed bruising on his back and began to experience back pain, which he attributed to the February 15 fall. (Tr. p. 11). The respondents denied liability for a back injury.
In early and late March the claimant participated in 4 days of snowboard ski competition. The claimant denied any falls during the competition that might have caused the back injury.
On March 16, 2004, the claimant applied for a hearing on compensability of his back problem. The respondents endorsed Dr. Steinmetz as a witness in their response to the application for hearing. A hearing was scheduled for June 10, 2004.
At the respondents’ request Dr. Steinmetz performed an independent medical examination (IME) on May 25, 2004. Dr. Steinmetz opined the claimant’s back problems were likely the result of a snowboard injury and not the February 15 fall. It is undisputed the May 28 IME report of Dr. Steinmetz was not provided to the claimant at least 20 days prior to the hearing as required by the Rules of Procedure, Part VIII(I)(1), 7 Code Colo. Reg. 1101-3. However, at a prehearing conference on June 8, the ALJ determined the respondents established good cause to admit the IME report at the June 10 hearing. At the conclusion of the June 10 hearing (transcript erroneously dated August 20, 2001), the ALJ allowed the parties to submit position statements no later than July 22, 2004.
Following the hearing the claimant obtained an MRI which revealed a herniated nucleus pulposus at L5-S1 with bulging at L4-5. The claimant was also examined by Dr. Weiss on June 28 who related the back problems to the February 15 fall at work. The claimant filed a motion on July 21, 2004, seeking permission to supplement the record to include the MRI and the report of Dr. Weiss. However, the respondents objected and the ALJ determined the claimant failed to prove good cause to admit the medical evidence offered by the claimant.
In the order on review the ALJ then determined the claimant failed to prove that his lumbar symptoms are causally related to the industrial accident. Therefore, the ALJ denied the claimant’s request for medical treatment of the low back injury.
I.
On review the claimant contends it was an abuse of discretion for the ALJ to consider the report of Dr. Steinmetz. We conclude the record is insufficient to establish reversible error.
The ALJ has considerable discretion in determining whether a party has demonstrated good cause for failing to provide a medical report to opposing counsel within the time limit established by Rule of Procedure VIII(I)(1). See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Because the ALJ’s authority is discretionary, we may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
However, the party who alleges an abuse of discretion has the burden to provide a record sufficient to show the error. If the appealing party fails to provide an adequate record, the correctness of the ALJ’s rulings must be presumed. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001).
The record does not contain a formal pre-hearing order or a transcript of the proceeding. Rather, the record contains only a hand written statement purportedly prepared by the ALJ dated June 8, 2004, which states that he authorized admission of the Steinmetz report at the June 10 hearing based on a “determination that good cause existed for waiver of the Rule VIII 20 day rule.”
There is no evidence the claimant submitted the hand written statement at the hearing on June 10. See Rule of Procedure VIII(I)(4), 7 Code Colo. Reg. 1101-3 at 30 (“copies of interlocutory orders previously issued in the case that a party intends to raise on appeal shall be filed and identified at the formal hearing”). Neither did the claimant expressly request the ALJ reconsider the pre-hearing order despite contesting one of the ALJ’s factual determinations in support of the pre-hearing order. (Tr. p. 7). Then after the ALJ clarified the disputed finding, the claimant made no further argument to contest the admission of the Steinmetz report. Under these circumstances the record is legally insufficient to conclude the ALJ’s finding of good cause exceeds the bounds of reason.
II.
The claimant also contends the ALJ abused his discretion in excluding the MRI study and report of Dr. Weiss. We conclude the findings of fact are insufficient to permit appellate review of the claimant’s argument.
Section 8-43-301(5), C.R.S. 2004, affords an ALJ jurisdiction to reopen a hearing after the apparent conclusion of the proceedings to receive additional evidence pertinent to determining the compensability of the claim. See Gilbert v. Rider Woulf, P.C., W.C. 4-243-377 (July 13, 1998), aff’d. Gilbert v. Rider and Woulf, P.C. (Colo.App. No. 98CA1393, April 29, 1999) (not selected for publication). In determining whether to exercise the discretionary authority to reopen a record the ALJ may consider several factors. First, the ALJ should consider whether the evidence has the potential to be outcome determinative, with a view towards protecting the claimant’s due process rights to present evidence in support of the claim. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000) (due process requires that parties be afforded a reasonable opportunity to present evidence in support of their position); Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765
(Colo.App. 1987). Further, the ALJ may consider whether the evidence could have been obtained and presented at the hearing through the exercise of due diligence. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Gilbert v. Rider Woulf, P.C., supra. Finally, the ALJ should consider the expense and inconvenience incurred by the opposing party if proceedings are reopened to receive additional evidence. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988).
In order to permit meaningful review of an ALJ’s order, the ALJ must make findings and conclusions which are sufficient to indicate the basis of his decision. Section 8-43-301(8), C.R.S. 2004. For this reason, we have previously held that an ALJ’s discretionary authority to determine the course of the proceedings does not relieve him of the obligation to articulate the basis of an order denying a continuance. See Vallot v. Krische Construction, W.C. No. 4-246-341 (September 11, 1997) ; Archuleta v. Gold Star Sausage Company, W.C. No. 4-246-350 (September 3, 1997) Mascarenas v. Brickwall Fire Protection, W.C. No. 4-019-793 (September 9, 1994); Libenson v. Cook Lee, P.C., W.C. No. 4-190-782 (August 18, 1994).
Here, the record contains some evidence the claimant did not anticipate the need to obtain an MRI or evaluation by Dr. Weiss until the ALJ’s June 8 order allowing the respondents to submit the Steinmetz report. Further, if the ALJ credits the opinions of Dr. Weiss the proffered evidence could be outcome determinative. Finally, because the respondents were permitted to introduce an expert medical report in direct conflict to the opinions of Dr. Weiss beyond the ordinary time limits established by rule, the admission of the Weiss report may produce little if any expense or inconvenience to the respondents. Regardless, the delay is partially attributable to the respondents themselves because Dr. Steinmetz did not even examine the claimant until 16 days before the scheduled hearing.
However, the ALJ did not discuss the record or make any specific findings of fact in support of his determination that the claimant failed to establish good cause to reopen the evidentiary record. (Order July 23, 2004). Absent an express determination by the ALJ we are unable to ascertain whether the ALJ’s determination is an abuse of discretion. Therefore we set aside the order and remand the matter for additional findings of fact and conclusions of law indicating the basis of the ALJ’s decision to exclude the MRI and Weiss report.
On remand the ALJ shall consider the relevant factors and redetermine whether the claimant established good cause to admit the MRI and Weiss report. If the ALJ determines good cause was established, the ALJ shall admit the proffered evidence and afford the respondents an opportunity to respond if they choose. If necessary, the ALJ shall then redetermine whether the claimant sustained a compensable back injury based on the record as a whole.
If the ALJ determines the claimant failed to establish good cause the ALJ shall enter specific findings of fact in support of that determination and transmit the matter to us for immediate review.
In view of our disposition it is premature to consider the claimant’s contention that the ALJ’s finding the claimant did not suffer a compensable back injury is not supported by substantial evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2004, is 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
Cameron Hancock, Avon, CO, Colorado Mountain Express, Vail, CO, Malcom D. Chandler, Liberty Mutual, Englewood, CO, Francis K. Culkin, Esq., Denver, CO, (For Claimant).
Scott M. Busser, Esq., Denver, CO, (For Respondents).