W.C. No. 4-562-710Industrial Claim Appeals Office.
December 19, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied and dismissed the claim for workers’ compensation benefits. The claimant contends the order is not supported by substantial evidence. The claimant further contends the ALJ erred by denying a post-hearing motion to submit additional evidence. We affirm.
The claimant alleged that she sustained a compensable back injury on October 8, 2002, when lifting a box of soda syrup onto a shelf above her head. However, the ALJ denied the claim, finding that the claimant failed to prove that any work-related injury ever occurred.
In support of this determination, the ALJ found that the claimant is five feet two inches in height, and the shelf was at least six feet eight inches above the floor. Further, the ALJ found that the box of syrup weighed approximately forty pounds. Under these circumstances the ALJ concluded it is unlikely the claimant injured herself as she described because “she would not have been able to reach the top shelf and place the syrup on such shelf.” (Finding of Fact 14). Further, the ALJ concluded the claimant probably would have requested assistance from coworkers rather than attempt to lift the box by herself. Finally, the ALJ discredited the claimant’s testimony that she immediately reported the injury to her supervisors, and noted the claimant did not seek treatment for the injury until six weeks after the alleged incident.
Following the entry of the ALJ’s order, the claimant filed a combined petition to review and request to “supplement the record.” Attached to the petition is a photograph purportedly depicting the claimant with her arms extended above her head and the palms of her hands resting on the shelf where she placed the box. The petition to review and accompanying cover letter argue the photograph demonstrates the respondents’ witness (Brown) misled the ALJ concerning the height of the shelf and that, contrary to the ALJ’s findings, the claimant was “easily able to reach the shelf.” Therefore, the claimant requested that the evidence be reopened to admit the photograph and for additional evidentiary proceedings. However, the respondents objected to reopening the evidence, arguing the photograph did not demonstrate the claimant’s ability to lift the box over her head, and was too dark to show whether the claimant was standing on her toes or a platform. On July 3, 2003, the ALJ entered an order denying the motion to reopen the evidence and “striking” the photograph.
I.
On review, the claimant contends the matter should have been “reopened” for the purpose of admitting the photograph as “newly discovered evidence.” We find no error.
Section 8-43-301(5), C.R.S. 2003 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). However, the ALJ is given substantial discretion in the conduct of evidentiary proceedings, and we may not interfere with his refusal to reopen the proceedings unless an abuse is shown. Dee Enterprises v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 02CA2040, July 31, 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse is not shown unless the ALJ’s decision 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).
In determining whether to reopen proceedings to receive additional evidence, 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). Further, the ALJ may consider whether the alleged “newly discovered 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, supra.
Here, we perceive no abuse of discretion in the ALJ’s refusal to reopen the proceedings. First, we do not agree with the claimant’s assertion that the photograph would probably be outcome determinative. The ALJ did not find the claimant could not reach or touch the shelf, he found the claimant would not have been able to reach the shelf and place the 40 pound box of syrup on such shelf. Thus, the ALJ found the claimant’s testimony improbable because of the height of the shelf combined with the weight of the box. The photograph, if authenticated, would show only that the claimant could touch the shelf with the palms of her hands extended above her head, not that she had the capacity to lift a heavy box to that height and place it on the shelf.
Neither do we think the photograph is “newly discovered evidence” which could not have been obtained prior to the hearing through the exercise of due diligence. The claimant does not contend the photograph could not have been taken before the hearing and submitted as evidence at the hearing. Rather, she argues that it was not until the hearing that she recognized the height of the shelf and her ability to reach it would become a factual issue.
First, the claimant was fully aware of her prospective testimony concerning the mechanism of the injury, and that the credibility of that testimony would probably be contested at the hearing. This is especially true because she had the burden of proof to establish her entitlement to benefits. Section 8-43-201, C.R.S. 2003. Thus, the claimant should have collected evidence, including the photograph, tending to corroborate her version of events. Moreover, as the respondents argue, the questioning of the claimant on direct examination reveals that claimant’s counsel anticipated the factual dispute concerning the height of the shelf, the claimant’s ability to reach it, and the alleged mechanism of injury. On two occasions the claimant’s counsel questioned the claimant concerning her ability to reach the shelf. (Tr. Pp. 16, 25).
Finally, we note that due process guarantees only a meaningful opportunity to present evidence in support of a disputed factual proposition. Whiteside v. Smith, 67 P.3d 1240, 1248 (Colo. 2003). The failure to take advantage of an available procedure does not amount to a denial of due process. Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994). In our view, this case does not present a situation in which the claimant was unfairly surprised by the issues adjudicated at hearing, or unfairly deprived of an opportunity to gather and present evidence in support of her theory of the case. Cf. Delaney v. Industrial Claim Appeals Office, supra. Rather, this is a case in which the claimant is dissatisfied with the ALJ’s inferences and credibility determinations, and now wishes to retry the case and present additional evidence to corroborate her testimony. In light of the inconvenience and expense to the respondents of permitting an additional hearing, we cannot say the ALJ abused his discretion in denying the claimant’s request.
II.
The claimant next contends the ALJ’s finding that the claimant failed to prove an injury arising out of and in the course of employment is not supported by substantial evidence. A portion of this argument assumes the ALJ should have considered the photograph, and if he had, he would have reached a different conclusion regarding the credibility of the respondents’ witnesses, particularly Mr. Brown. The claimant also asserts that Brown’s testimony was inconsistent and inherently unreliable. We find no error.
The question of whether the claimant proved a compensable injury is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Because the issue is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Further, insofar as the testimony of a witness contains internal inconsistencies, the ALJ may resolve the inconsistency by believing part or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Because the ALJ properly declined to reopen the proceedings and admit the photograph into evidence, we may not consider it as part of the record on review. Subsequent Injury Fund v. Gallegos, 746 P.2d 71
(Colo.App. 1987) (attachments to briefs and factual assertions contained therein may not substitute for that which must appear of record). Consequently, to the extent the claimant’s arguments are predicated on the alleged evidentiary impact of the photograph on the credibility of the respondents’ witnesses, we may not consider such arguments.
Further, we disagree with the claimant’s argument that the evidence does not support the ALJ’s order. To the contrary, the ALJ fully and carefully explained the basis of his decision and the reasons for his credibility determinations. We have reviewed the record and conclude that it fully supports the ALJ’s findings and inferences. The mere fact that some evidence, if credited, might have supported a different conclusion affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003).
We reject the claimant’s argument that Brown’s testimony was so inherently inconsistent that the ALJ erred in relying on it. Although the testimony is somewhat inconsistent concerning the height of the shelf, the ALJ credited that portion of the testimony which stated the shelf was approximately six feet eight inches high. The ALJ necessarily resolved the inconsistency in the testimony, and we may not interfere with that decision.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 19, 2003, is 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on December 19, 2003 by A. Hurtado.
Bentura Hernandez, 217 E. 45th Ave., Denver, CO 80216
Randy Morget, Wendy’s International, Inc., P. O. Box 256, Dublin, OH 43017
Pacific Employers Insurance Company, Anita Fresquez-Montoya, ESIS, 8200 S. Quebec St., A3, #278, Centennial, CO 80112
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)