W.C. No. 4-649-073.Industrial Claim Appeals Office.
December 9, 2009.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 19, 2009, that denied the claimant’s claim for permanent partial disability benefits and for additional medical benefits. We set aside the order and remand for further proceedings.
A hearing was held on the issues of the claimant’s entitlement to permanent partial disability benefits and to medical benefits following maximum medical improvement. Following the hearing the ALJ entered factual findings that for the purpose of this order may be summarized as follows: The claimant sustained a compensable injury when she sat on a bench, which then broke causing her to fall to the floor. She had sustained several previous industrial injuries, including one in February 1993 when she injured her low back and arm in a motor vehicle accident. She also sustained an injury in October 1997 when a television fell and struck her head and was injured in March 2001 when she fell. The claimant reported this injury in December 2003, and she was referred to Dr. Fortunato for medical treatment.
The ALJ entered factual findings regarding the course of medical treatment received by the claimant and found that on April 19, 2005 Dr. Hattem, who was apparently an authorized treating physician, examined the claimant and determined that she had reached maximum medical improvement with no permanent impairment attributable to the compensable injury. The claimant applied for a Division-sponsored independent medical examination (DIME), which Dr. Finn was designated to perform after the parties struck the names of two other doctors pursuant to the Division’s selection
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procedure. Dr. Finn performed the DIME on September 28, 2005, and reported that the claimant did not sustain a shoulder or wrist injury in the accident. Dr. Finn agreed with Dr. Hattem that the claimant had reached maximum medical improvement on April 19, 2005 and determined that the claimant has sustained no permanent impairment as a result of the 2003 injury. The insurer filed a final admission of liability on October 10, 2005, and then an amended final admission on October 26, 2005. The claimant objected to the final admission and applied for a hearing.
A hearing was held before ALJ Walsh on April 5, 2005 on the sole issues whether the claim was closed by the respondents’ final admission and whether the DIME should have been “invalidated” because of Dr. Finn’s alleged bias against the claimant’s attorney. ALJ Walsh determined that the claim was closed by the final admission. His order was eventually reversed by the Colorado Court of Appeals, which remanded for determination of the issue whether the DIME doctor was biased against the attorney. In an order dated May 22, 2008, ALJ Walsh issued an order denying the claimant’s request to strike the DIME report.
The ALJ weighed the competing medical and other evidence and determined that the claimant had not overcome the DIME report. In this regard he found that the claimant failed to establish that any bias against her attorney warranted the conclusion that the DIME report had been overcome. The ALJ rejected the claimant’s argument that Dr. Finn had a duty to disclose that his relationship with the claimant’s attorney had been “adversarial.” The ALJ also rejected the argument that Dr. Finn’s destruction of his file of materials relevant to a grievance he filed against the claimant’s attorney was relevant, finding that Dr. Finn’s actions had “little impact on the facts of this case.” The ALJ was unpersuaded by the claimant’s argument regarding the “adversarial relationship” and he credited the doctor’s testimony that his medical opinions were not affected by his opinions of the patient’s attorney.
Based upon his factual findings, the ALJ denied permanent partial disability benefits and denied further medical benefits. The claimant appealed and makes a variety of evidentiary arguments, chiefly contending that this ALJ as well as ALJ Walsh erred in refusing to strike the DIME report and that this ALJ erred in refusing to permit her to adduce evidence of the DIME doctor’s bias against the claimant’s attorney. We have reviewed the record and considered the claimant’s arguments, and we are unpersuaded that reversible error was committed.
The claimant first argues that the ALJ erred in considering documents that were not admitted into evidence. She argues that the ALJ sustained her objection to the respondents’ proffered Exhibit KK, and then improperly considered it in his determination that the claimant was not a credible witness. We agree with the claimant’s
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argument in this regard and conclude that it requires that we remand the matter for entry of another order that is not based upon the ALJ’s consideration of evidence that was excluded from admission.
During her cross-examination of the claimant the respondents’ attorney showed her Exhibit KK, which is a medical form apparently filled out by the claimant and containing notations made by her concerning pain and other symptoms. During the subsequent discussion of the exhibit, the ALJ noted that it was identical to an exhibit submitted by the claimant, except for the omission on Exhibit KK of certain references to a shoulder and neck injury. The ALJ asked to examine the two documents in order to determine whether they were “two different documents, or the same document.” Tr. (5/11/2009) at 65. After apparently doing so, the ALJ concluded that they were copies of the same original document, although they were not identical. The ALJ observed that Exhibit KK was identical to the claimant’s exhibit, except that the latter contained an additional line of text referring to shoulder and neck pain. Tr. (5/11/2009) at 65. The ALJ then questioned the claimant briefly, who testified that when she filled out the medical form she did it as it appeared in her exhibit and that she “absolutely” did not know how “it got to look like KK.” Tr. (5/11/2009) at 66. Following some discussion, the ALJ sustained the objection to Exhibit KK, and then reiterated that ruling after further discussion, stating that he “will not receive it in evidence.” Tr. (5/11/2009) at 66, 68.
The basis for the ALJ’s excluding the exhibit was that the respondents had failed to establish a sufficient “foundation” for admission of the document. By this we infer that the ALJ doubted the authenticity of the document, or at least believed that the respondents had a further burden to show that it was authentic prior to its admission. See Alonzi v. People, 198 Colo. 160, 597 560 (1979) (foundation evidence requires showing of authenticity of tape recording). We note that in this respect the respondents did not argue that the medical report was self-authenticating pursuant to § 8-43-210, C.R.S. 2009 (medical reports are admissible without “formal identification”). In any event, the respondents have not appealed the ALJ’s order, and therefore any error excluding the exhibit is not before us. We therefore do not address this issue further.
However, the ALJ’s order makes evident that he considered the exhibit in making his credibility determination. As noted by the claimant, in his order the ALJ described Exhibit KK and especially the omission on the exhibit of “pain marking” on the left shoulder and markings indicating neck pain. The ALJ then observed that the respondents’ exhibit was different from the version offered by the claimant and he concluded that “[apparently at least one party altered a document from its original state.” The ALJ further stated that the claimant had a motive to do so and that the employer did not. He then concluded that the claimant’s testimony was “false and not reliable,” specifically relying upon “[t]he altered exhibit” among other factors. In our view the
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ALJ’s reliance on Exhibit KK in determining that the claimant had given “false” testimony was error. We agree with the claimant that once the exhibit had been excluded the ALJ erred in relying upon it for support for his factual findings regarding the claimant’s credibility.
We cannot conclude that this error is harmless. Although the ALJ considered numerous factors in concluding that the claimant’s testimony was “false,” we cannot surmise that the allegedly “altered exhibit” made little difference in his determination. Doing so would require us to speculate regarding the relative weight he gave each factor, which it is impossible to do from this record. Moreover, the ALJ’s exclusion of the exhibit on the grounds that it lacked “foundation” at least suggests that the ALJ was of the view that the respondents had not made a sufficient showing of the document’s authenticity. Accordingly, it is necessary for us to remand the matter for entry of another order that is not based in part upon the ALJ’s consideration of evidence that was excluded.
In light of our remand for entry of another order, we have considered whether it is necessary for us to resolve the claimant’s remaining arguments. We conclude that it is not. The claimant makes several other arguments, chiefly directed to alleged errors regarding her ability to adduce evidence of Dr. Finn’s bias. She argues that the ALJ erred in refusing to permit testimony regarding Dr. Finn’s destruction of his file of materials related to the grievance he filed against the claimant’s attorney. The claimant also seeks review of ALJ Walsh’s order, arguing that he erred in refusing to strike the DIME report based upon the alleged bias of Dr. Finn.
It is true that the relief the claimant requests in regard to these alleged errors is a remand for a further hearing “to develop full evidentiary record on the conflict of interest of Dr. Finn. . . .” Arguably, were we to resolve these alleged errors we would grant or deny the claimant’s request for a further evidentiary hearing, which might be more efficient than piecemeal resolution of these issues. The problem with this approach, however, is that we do not know how the ALJ will resolve this matter on remand, nor should we be understood as attempting to dictate any particular resolution. Rather, we merely remand the matter for entry of another order that is not based upon the ALJ’s consideration of evidence that was excluded. We emphasize that our remand does not contemplate a further hearing, but only entry of another order based upon the record as presently constituted. In any event, if the ALJ reconsiders his credibility determination and concludes that the claimant successfully overcame the DIME report, it would presumably render the claimant’s remaining arguments moot. Thus, in our view it is unnecessary for us to resolve these arguments pending the ALJ’s entry of another order.
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On remand the ALJ should enter another order resolving the issues presented and not considering Exhibit KK.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 19, 2009 is set aside and the matter remanded for entry of another order consistent with the foregoing.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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CATHY LEEWAYE, COLORADO SPRINGS, CO, (Claimant).
HARRISON SCHOOL DISTRICT #2, COLORADO SPRINGS, CO, (Employer).
AMERICAN COMPENSATION INSURANCE COMPANY, Attn: MR. DON HAUGEN, MINNEAPOLIS, MN, (Insurer).
STEVEN U. MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: MARGARET KECK, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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